I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. I also wish to point out that on Report Stage each amendment must be seconded.
Refugee Bill, 1995: Report and Final Stages.
I move amendment No. 1:
In page 4, between lines 19 and 20 to insert the following:
"`public policy' means the principle that a person will not be permitted to do that which has a tendency to be injurious to the public or against the public good.".
We had a long discussion on Committee Stage during which the Minister explained much of her view on this matter. It became clear that people on both sides of the House held a relatively common position. While there may have been a difference in the use of wording, there was general approval for what the Minister was trying to achieve with her view on the issues of public order and public policy.
The debate went on at some length and created huge elements of confusion. It became clear that there were differences of understanding about the interpretation of the words ordre public, from the French in the Geneva Convention, and the use of the words “public policy”. This was further confused by the use of the words “public order” in certain parts of the Bill. People tried to explain their different positions. It seemed appropriate that there should be an amendment to the Bill which would seek to interpret “public policy” in a way which made sense to everybody.
As things stand the question of public policy is, in the main, determined by common law and the courts. It has not been defined specifically in any Act in the history of the State. This legislation is of particular importance. There are consistent references to "public order" in section 4 (2), section 9 (15), section 11 (4) (b), section 17 (2), section 18 (5), section 21 (1) (g) and so on right through the Bill. This is fundamental. The Minister is allowed to take exceptional measures when, in his or her view, the interests of national security or public order might be threatened. For that reason we should push as far as possible to have an interpretation, definition or explanation of what is meant by public policy.
The difficulty with a definition is that it can be restrictive and does not allow for much in the way of loose interpretation. One of the important aspects of the idea of public policy is that it changes through the generations and with time, place and context. Any interpretation or explanation of public policy must allow for flexibility, movement and space. I did not, therefore, attempt to put forward a definition as such but rather a legal explanation of a well understood principle in law. My proposal is that public policy means "the principle that a person will not be permitted to do that which has a tendency to be injurious to the public or against the public good.". That would allow for a wide, liberal, broad, progressive and flexible interpretation along the lines which the Minister argued quite effectively on Committee Stage. I would like to hear her response because the amendment seeks to meet the points she put forward on Committee Stage.
I second the amendment which is extremely well drafted. I will not repeat the lengthy debate which took place on Committee Stage but I remind those who were not present about the fear in relation to public policy. An English type scenario could arise where it would appear that somebody would not get proper protection in the United Kingdom against a Middle Eastern country because it would be against the economic interests of the United Kingdom. Nobody in the House, including the Minister, would want such a situation to arise. She correctly said that to translate this directly into public order would be too restrictive. However, I do not see how she can legitimately object to what is a reasonable and well drafted amendment which has the effect of properly defining ordre public.
The Minister may say it is obvious what ordre public means. It may be clear to some — the Minister articulated its meaning fairly well on the last occasion — but the law must be easily understandable and accessible to everyone. There is no reason such an important and vital concept should not be contained in the list of definitions. The quality of drafting from the Independent Senators is of the highest calibre and I am delighted to support this amendment.
One would expect nothing but the highest standards from the Independent Senators. I support the amendment for the reasons already stated. Without going into them, it seems inconsistent that we define something as precise as the Geneva Convention and information in section 1 but are reluctant to define public policy. There is confusion about ordre public and public policy which was evident when we debated the matter on Committee Stage. It is essential that we copperfasten this into the Bill otherwise there will be a series of litigation and there will be parallel process alongside a refugee's application to stay in the country. We will be asking successive courts, up to the Supreme Court, to define in law what is meant by the phrases in the Bill which should be defined in section 1.
I do not object to the sense of what Senator O'Toole is trying to achieve and I share his view. At an earlier stage I undertook to consult the Attorney General on the question of definition. In fact, I went wider than that and I consulted a number of academic lawyers, including one recognised international expert in this area. The strong and uniform advice given to me was that to include this definition in the Bill would be wrong because it runs the risk of limiting the definition of public policy.
Senator Mulcahy referred to the Al Masri affair. I remind the Senator that Mr. Al Masri was allowed to stay in the United Kingdom precisely because the courts took the view that public policy overrode the Government policy of the Home Secretary of the day — this is the nub of the matter. In seeking to define it, one runs the risk of either drawing it so tightly as to exclude certain items or so vaguely as to include inappropriate things.
While the wording is adequate as a dictionary explanation, it has the same difficulty which the Senator seeks to avoid — it merely replaces one undefined expression with an equally undefinable one, that of public good. I am also unhappy with the inclusion in the definition of "a tendency to be injurious to the public" which is potentially more restrictive than "public policy".
I have taken further advice from the Attorney General. He has confirmed my view of the position. He has also advised that the cases in which the courts have applied the concept of public policy show the amorphous nature of the concept. The phrase "public policy" and the concept which it designates are well recognised in common law jurisdictions. The concept is regularly invoked by the courts as a basis for invalidating a contract or a clause of a will and in various areas of family law, such as the recognition of foreign marriages or divorces. For example, it is public policy which dictates that a polygamous marriage contracted abroad will not be recognised in this jurisdiction.
There is the former rule of public policy which dictated that a murderer should not benefit from his victim's death. This is now enshrined in statute in this jurisdiction. The courts in England have held to be void on grounds of public policy the provision of a will which made a bequest conditional on the beneficiary not being a Roman Catholic on reaching a particular age.
In the 1951 King's Bench case of Monkland v. Jack Barclay, “Certain specific clauses of contracts have been ruled by authority to be contrary to the policy of the law, which is, of course, not the same thing as the policy of the Government, whatever its complexion.”. Lord Justice Asquith went on to say: “The courts should use extreme reserve in holding a contract to be void as against public policy and should only do so when the contract is uncontestably and on any view inimicable to the public interest.”.
Two important conclusions can be drawn from this — first, the absolute distinction between public policy as a concept and the policy of the Government of the day and, second, there is the emphasis on the great caution to be exercised by the courts in applying the public policy concept, except in the clearest of circumstances. Public policy is a concept which derives from the common law — it has been developed by the courts. It is concerned with the interest of the State or the community. It includes, for example, principles recognised by the Constitution, such as protection of the family, the right to free speech and respect for human rights. It gives recognition that there exists interests which are of fundamental importance to the State. These interests are fundamental and abiding. Government policy may come and go and change as Governments change, but public policy has no such volatility.
Senators have pointed out this item is not defined and because of that, there remains an uncertainty in the legislation. I disagree and the best legal advice, on a broadly considered basis, reinforces my view.
Essentially, this argument is founded on semantics. Before Senators rail at me for using that word. I remind the House that I use it in its pure and neutral sense as describing the area of linguistic sciences concerned with the meaning of words. I am aware others may use it in a slightly more derogatory way, but there is nothing trivial in the arguments put forward by the Senators. I understand the position outlined by Senator O'Toole but the balance of the advice in this case is that it might be best to leave well enough alone. One risks an injury to that which one seeks to uphold by seeking to be over-zealous in terms of definition.
Senators are correct that the interpretation depends on the circumstances of any particular case or issue. There are indications from case law as to what might or might not come within the bounds of public policy, including, as I mentioned, principles recognised in the Constitution. In addition, there are strong indications that the courts will only stand over the invoking of public policy in exceptional cases where harm to the public is incontestable.
I will go further and point out that what comes within the compass of the concept of public policy or what would be ruled out by its application varies with the passage of time. The easiest example is the discrimination against women which obtained in Victorian times and the situation today where such a concept would not survive in our courts. It is clear from this and many other examples, which I will not spell out, that the concept is sufficiently flexible to allow the courts to take account of changes in social values and the social climate when applying it to each particular set of circumstances.
While I explained what the courts understood it to mean in the past and how they are likely to apply it at present, nobody can take the extra step from explanation to definition because, by its nature, the concept does not have clean crisp edges. Attempting to do that may cause an injury to the broad principle which the Senator is correctly seeking to uphold.
In summary, public policy is a common law concept already well known to Irish law. Public policy is not the policy of the Government of the day but a more lasting perception of the public good. All uses under the Bill of the public policy ordre public exception are reviewable by the courts, which have the final say on whether invoking the concept in any particular case is justified or otherwise. The proposed definition, which is good and seeks to be broad, does not adequately define the term which is, in any event, inherently indefinable.
Terms in the definition might potentially have the opposite effect to the Senator's intention. The proposed definition in the second part would replace one indefinable term with another, that is, public policy with public good. On that basis I ask the Senators to accept my arguments. I appreciate their sentiments but the amendment does not achieve the purpose they intend.
I will never use the phrase "let us be consistent" or say "that is only semantics". A person knows little about language when they say "that is only semantics". I spent over a year studying semantics and I hold them in high regard. It is not a diminishing of my argument but rather praiseworthy, for the Minister to say it is based on semantics. People should know the difference between a hedgehog and a porcupine or a weasel and a stoat and what is a united Ireland and freedom. Semantics is the most basic problem in society; people argue about the same word but have different understandings of its meaning. My view is that semantics should be taught and people should only use language when they know the use and meaning of it. They should not use words that they do not understand. I am one of the few people who is likely to set up an Irish apostrophe society and who will use a hyphen in language. I try to use "hopefully" in its correct sense and I do not split infinitives or end with prepositions if I can so avoid. Semantics are important and that is why I felt the need to bring forward the idea of a clear explanation and understanding of what was meant by ordre public or public order in this Bill. I was uncomfortable with the different uses of it in this legislation.
I recognise the use of it in various places in the Bill. Following an interpretation of its meaning the Minister may in one section decide the basis on which a travel document may be withheld or issued, the basis on which leave to enter may be refused, the basis on which information pertaining to an application can be withheld from the appeal board, the basis on which family members of refugees may be prohibited from entering the State and the basis on which a declaration of refugee status may be revoked.
Section 17 (1) gave me cause for greatest concern. It allows the Minister to respond to developments under section 13 and 16. The Minister could issue an order depriving the person of access to the courts, given under section 3, and could also deprive them of rights under sections 9 and 19.
The issue here is that of a judicial review about which the Minister of State spoke. Judicial review horrifies me. It is the last refuge when you cannot go any further with a law; when there is a hole in the legislation, when it is silent on an issue or when it fails to deal with issues. People having recourse to the courts should do so seeking a determination or arbitration or a result. Because a judicial review on a ministerial decision does not give a result, I felt it was important that there would be an interpretation/explanation of ordre public in the Bill. People taking on the Minister on the issue would have at least something to grapple with and would make the Minister show cause that he or she worked within an understood context of public order.
I have listened to the forceful argument of the Minister of State. I concede that she has had wide ranging consultation. The people with whom I have had discussions would take the view that it would be better if there were not a definition/explanation in the Bill.
I listened carefully to what the Minister of State said about the wording of the amendment and I am not convinced that "injurious to the public" is a narrowing of the principle of law that is involved in public order. The Minister of State has created enough doubt in my mind for me to be worried about putting something into legislation which might weaken it. I accept her argument on this amendment with reluctance because there is still a lot of doubt about it. It is not my intention to push this issue to a vote.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 8, line 36, after "declaration" to add:
"save that applicants may make reasonable argument to the Minister to be exempted from this restriction and where such seems reasonable and practicable to the Minister the exemption shall be granted."
We had a long debate on Committee Stage on this matter and the Minister failed to give the House any reasonable explanation. Senators gave examples of cases, one of which I will restate here. Let us look at the situation of a person who could have been working in Ireland. This person was highly qualified in the medical area and was dependent on State assistance because, in the current situation, an applicant for refugee status is not allowed to work while in this lacuna. I think this person was on the dole, but I did not go the trouble of checking that out. It seems to create a conflict in itself because my understanding is that a person is only entitled to the dole if they are prepared and ready to work. The persons involved here would be prepared and ready to work. The person to whom I refer, a South African who had a family and was highly qualified in the medical area, was appalled and suffered extraordinary loss of dignity and a real sense of loss of esteem by not being able to take up employment in Ireland, a position he could have held profitably and effectively and he would have been less of a burden on the State. A person who could look after himself or herself is very acceptable.
We are looking at what is almost enforced poverty, and there is a legal precedent. In one case, a judge ruled definitively that a decision by the State enforced poverty on a person and that therefore it was a wrong decision. I am not saying that ruling applies in this area but, for the ordinary person on the street who is not a lawyer or a politician, there is no doubt about the idea that a person seeking refugee status in this jurisdiction, who has a qualification, could find employment as a teacher, a nurse, a doctor, etc., in an area in which their expertise was required, "shall not seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration".
On Committee Stage, the Minister debated at length the exploitation of people in this twilight zone of being stateless, between states or awaiting leave to formally enter the State. I felt irritated on Committee Stage with the way the Minister put forward her views because I do not believe she could possibly accept her own arguments. People are exploited when they are illegals. It is the illegal Irish in North American whom Members of this House and the other House fought to have legalised, the illegal Mexicans in California who have been abused and exploited, the Turkish people in Europe and various other people who have no legal status who are at the mercy of unscrupulous people. A person who is entitled to be employed is someone who can demand his or her rights.
I wear a number of hats and I have a grave concern that there is no understanding anywhere of a right to deprive somebody of the right to work except in the most extreme circumstances, such as imprisonment or the State taking action against a person. This is effectively punishing a person and it costs the State. I ask the Minister to accept this amendment as there is no justifiable argument against it. There is no case to be made which would be acceptable or sustainable. All the arguments appear to indicate that a person should be entitled to work and the State should have control; the person should not work in the black economy and should not be illegal and he or she should be able to demand his or her rights and to contribute to the community. This would make it easier to integrate into the community at a later stage.
I second the amendment. I ask the Minister to accept it for all the reasons articulated by Senator O'Toole.
On committee Stage the Minister opposed amendments in relation to time limits. However, this process is open ended. The Minister anticipated that there could be appeals to the High Court on some of the sections in this Bill. We all know how slow the process of litigation can be in the High Court; it could take several years. By the time the Refugee Commissioner, the Refugee Appeal Board, the High Court and, perhaps, the Supreme Court look at an application, a refugee applicant, who is successful, could have been denied the right to work for five, seven or even ten years. Will we tell these people that they will not have the right to fulfil themselves economically, to practise their trade or profession or to occupy their time for that period? This can also be a psychological problem for refugee applicants because there is nothing as demoralising as having nothing to do.
The Minister's argument about the black market does not stand up. Senator O'Toole made the point that illegal immigrants are exploited. For example, the illegal Irish person in New York, who does not have a J1 visa or whose papers are not in order, is often forced to go underground and to get employment at reduced levels of remuneration. If, as this amendment proposes, refugee applicants have to make application to the Minister and be granted an exemption, we will know who is the employer. The Minister will also be in a stronger position to know where refugee applicants are working and will be in a stronger position to supervise and police their conditions of employment. Rather than making it a black market labour problem, this amendment will encourage those people who want to work to apply to the Minister.
Everybody has the right to work, even those who are not highly trained or qualified; it is often vital for those with the least education. I strongly implore the Minister to accept this amendment.
I support this amendment on some of the grounds already outlined. Traditionally, the process has shown a tendency to take a long time. We are not talking about a short period but about people being disbarred from employment for what could be a considerable period of time.
Although Senator O'Toole spoke about the right to work, this is seen in many areas as a fundamental right of a citizen. However, these persons have not yet been adjudged to fall into the category of citizens of this country. Nevertheless, it is a reasonable expectation that people, who are in a situation for a long period of time, may be permitted to work. Despite the fact that Senator O'Toole invoked this principle of the right to work, his amendment does not go so far as to confer upon an applicant a right to work. His amendment is reasonable and it uses that word twice. It states: "save that applicants may make reasonable argument to the Minister to be exempted from this restriction and where such seems reasonable and practicable to the Minister the exemption shall be granted.". That sounds like it has the good virtue of horse sense. It does not impose a requirement upon the Minister and it does not confer a right on the applicant, but it permits the Minister to be reasonable. It is not extravagant to ask the Minister to respond to a reasonable request in a reasonable and practicable way. That is a modest and humane demand.
I have a sneaking suspicion that reservations about this will come from the aliens office in the Department of Justice because it has a neurotic fear that Ireland will be overwhelmed with applicants for asylum status who will snaffle up all the jobs and dislodge the local inhabitants. That is not realistic, practicable or reasonable, to use Senator O'Toole's phraseology. In other countries which have experienced a considerable influx of asylum seekers, they have conferred economic benefit on the society in which they found themselves. For all those reasons, I urge the Minister to accede to what is a reasonable amendment.
To decline to accept this amendment would be the ultimate in illiberalism. It would be the mark of a liberal society, which I am sure this Bill espouses, for the State to offer refuge to vulnerable and bewildered people coming into the country. If they are fortunate to be able to find employment or are qualified to practise a profession, they should be allowed to do so because the liability to the State would be greatly reduced.
On a human rights basis, the amendment is reasonable and should be supported. The point was made that a convicted criminal in our society should be able to seek and gain employment when they leave prison. It should be better, not the same, in this case. The amendment does not confer an unrestricted right. It allows the person to make their case to the Minister why they should be treated in a particular way. I would not ask them to do that but I understand the reasons it is being requested. History should teach us that when people find themselves in foreign countries they should be able to pursue a profession, open a shop, etc. Enough Irish people had to find employment when they went away for us to be able to identify with the problems of those coming to our shores and to treat them humanely and to give them support and encouragement.
Deferral of a declaration, as the Bill is framed, could be used as a practical penalty used against somebody seeking a declaration of their status. This bureaucratic process takes time and deferral of a declaration should not be used as a practical penalty against these people. Senator Norris has raised the spectre, which may be abroad within the Department, of little yellow people invading us and taking all the best jobs. I suppose there can be some paranoia about these things and that might be reflected in a certain tone to the Registration, but it is not a very desirable course to take. Asylum seekers have enough problems to deal with when they come here and if they are in a position to find employment and people are prepared to employ them, that should be done because it will remove a burden from the State. Our own history tells us that is how they should be treated.
I do not know whether the Department of Justice is to blame. I have a sneaking suspicion that the Department of Enterprise and Employment may be worried about asylum seekers coming in and distorting our unemployment figures; even if they come in their hundreds they will make very little difference to the unemployment figures. I pointed out in my Second Stage speech that a number of asylum seekers could be useful to us if they worked here. I know the Minister hopes asylum seeking cases will be processed more rapidly but she does not have total control over the process because supporting documents and evidence must come from other countries.
I compliment the Department of Justice on granting naturalisation to the large number of foreign doctors who have worked here for, in many cases, more than ten years. I do not think an obsession within the Department of Justice with keeping foreigners out is at the root of this. These people were treated in a most unjust way. They supported our health service when we could not get Irish nationals to take the jobs, yet we were not prepared to grant them naturalisation. I am pleased that in the last few years that policy seems to have changed and some people have been given their papers. These people could, after all, be useful to the State.
In some other European countries, asylum seekers are allowed to work after a certain length of time. In Finland, after three months an asylum seeker may accept a job, but only if it is not taken by a Finnish person registered with the unemployment office. In Germany there is an initial prohibition period of three months. The position must first be offered to Germans or privileged foreigners, that is, European Union citizens. They have found that by allowing people to apply for jobs there, they are able to make a much better estimate of their asylum seeking figures. Because Germany shares a border with a number of Eastern Europe countries, she gets a considerable number of asylum seekers. The restriction on employment there has helped prevent an underground culture of employment.
On Committee Stage the Minister said that if people were allowed to work they would be employed in the black economy more easily. I do not think that is the case. The possibility of work is pretty remote in this amendment, because they have to apply to the Minister who can refuse and there are no time limits. In Switzerland, for example, people can apply to work after three months, there are no conditions, and after six months they cannot be refused the right to work. It is interesting that Switzerland would be so enthusiastic about getting people to work. From the point of view of the State and of asylum seekers it would be preferable to legislate for a limited right to apply to the Minister to be allowed to work while awaiting a declaration of status.
I congratulated the Minister on this Bill as being progressive and liberal. On Committee Stage I heard this point debated and paid some attention to it. I heard the Minister's views and understood the concern she expressed. Senator Henry is right; those are the concerns of the Department of Enterprise and Employment. However, it seems to me that the Minister was listened to very carefully by those who put down this amendment. As the Bill stands at the moment it says that an applicant shall not—
seek or enter employment or carry on any business, trade or profession during the period before the final determination of his or her application for a declaration.
Senator Henry touched on the point that this is not uncommon in other countries and mentioned Finland, Germany and Switzerland. The amendment moderates very clearly the intention of what was discussed on Committee Stage. We have need of some highly skilled asylum seekers who come to this country and if we do not accept this amendment we will be debarred from availing of these skills and be the worse for it. The Minister could consider accepting this amendment without causing the worries she and others expressed on Second Stage. The amendment adds, after the word "declaration"
save that applicants may make reasonable argument to the Minister to be exempted from the restriction and where such seems reasonable and practicable to the Minister the exemption shall be granted.
We are giving the Minister, and ourselves as a nation, the opportunity to avail of and benefit of an asylum seeker's expertise here while he or she is waiting for a decision to be made. This amendment should put to rest the worries and concerns that the Minister and the Department of Enterprise and Employment expressed through the Minister on the last occasion. I urge the Minister to consider it.
The number of asylum seekers currently coming here is very significant. More than 438 people have applied for asylum here this year so our figures will be substantially in excess of the number of asylum seekers in Finland, for instance, this year. The fact is perhaps not sufficiently appreciated that growing numbers of asylum seekers are coming here and if there is an excessively liberal provision in this Bill we will be targeted, not by genuine asylum seekers but by those who seek to use the time scales, time spans and the appeals processes to undermine labour market conditions here.
I undertook on Committee Stage to speak with the Minister for Enterprise and Employment on this issue and I have done so. When an asylum seeker is granted asylum status here the Department of Enterprise and Employment immediately makes work permits available free of charge. It is a question of balancing two considerations. The first is the right of Irish workers to have their labour market conditions broadly protected by not being undermined.
I appreciate that the examples which have been given by the Senators are very touching. We would all feel a great deal of sympathy for them, but the reality is somewhat different. There are now people across the world who seek to abuse asylum provisions, in many cases for the purposes of undermining labour market conditions. In some countries where there is the right to work — and this would include the London area — the kind of work which is available and the rates of pay at which that work is available would cause most Senators concern. The people who are able to avail of that work in many cases are highly qualified but they are not finding work appropriate to their qualifications. They are finding work at the absolute lower end of the market, in some cases, under conditions and at rates of pay that give rise to great cause for concern.
I believe that the solution to this problem is to have a fast asylum appeals processing system whereby, when the appeal is determined, the person immediately has the right to work. I think it is important that we should distinguish the Refugee Bill which is seeking to put the Geneva Convention into Irish law on a statutory basis. The primary reason for someone seeking the protection of the Geneva Convention is fear of persecution. It is not for economic betterment. I accept there is an argument about Irish people going to other countries to achieve economic betterment.
I accept that as an argument in relation to our immigration procedures in general, but if this Bill introduces a right to employment for asylum seekers on special appeal to the Minister — this is a small society and we all know these special appeals tend to develop over time — which is not there for the immigrants spoken about by Senator Henry, for instance the doctors who have to apply for a work permit and so on, it will be used by the unscrupulous and the criminal to employ cheap labour in conditions which would be injurious to their health. This would undermine the position of the Irish labour market. In this Bill we have sought in many areas to balance two questions: one, the legitimate rights of the asylum seeker who is fleeing persecution and who is entitled to the full social welfare provisions of the Irish State — it is not unemployment benefit or assistance, it is supplementary welfare allowance because the asylum seeker would not have a history of working in this country — and, that we provide health and education facilities but we do not allow untrammelled access to our labour market because of the fear of undermining——
As in the amendment, Minister.
No. Given how Irish society progresses, the effect of this would probably be to put unendurable pressure on Ministers to accede to a string of particular cases. To cast this doubt in the Irish Refugee Bill would mean that, to some extent, we would become a target. I have said I am concerned at the increasing number of applications which are flooding into Ireland, particularly from specific countries. These cases will have to be judged on their merits in due course but I am concerned that our figures are in excess of a country like Finland. We have to balance our two interests. I appreciate the sentiments behind the Senators' statements, but I would ask them to consider the position carefully.
I have listened very carefully to the points made by the Minister today and last week. The amendment reflects the importance of a good Committee Stage. On Committee Stage we teased out these issues and were most unhappy. The Minister did convince me, and I think my colleagues, that giving everyone the right to work did not find resonance on this side of the House. The Minister was less than generous in interpreting what we are seeking to achieve. We are not seeking an unrestricted right of access. We are putting in something which includes a process. We are allowing the final determination to the Minister and we would feel that an interpretation of the words "reasonable argument" and "reasonable and practical", etc., would allow and require the Minister to make those decisions.
Senator Henry carefully outlined those facts which came up at various points in the discussion to date, that there are requirements which many countries use in this area. Even in countries which allow a right to work, they are very careful about how they do it, in some cases, it is only when no one on the unemployment register is available or qualified to do the job or if a person has a qualification which is in short supply. There are all sorts of ways this can be done; the most common would be that a person would have to have a job offer before they would be entitled to get permission to work. This would allow everything to fit in with our policy and ensure that the Irish workforce was protected and not undermined. The applicant would have to say he had been offered a job as a consultant or a builder's labourer, etc., and on that basis a Minister might make a decision. All those things are open and those kinds of checks would be crucially important.
As I said in my opening presentation, I believe that people are exploited when they are invisible to the State, when they are not part of the bureaucratic structure and are not recognised by the State in any way except as people who are waiting for entry. If they had to register where they were employed and register to get the approval of the Minister, none of the issues the Minister of State brought forward would apply. I cannot accept the argument that some of these people could put "unendurable pressure" on the Minister. That is really going to the bottom of the barrel in terms of an argument and I feel unable to respond to it in a broad way.
This is not an excessively liberal measure, this would be a reasonable way of dealing with a problem and would save the State money — one of the things which comes up in all legislation — and it is something on which a Minister would make a decision on the basis that it was reasonable and practicable. At one stage I worked in New York when I was not supposed to be working. It was a very uncomfortable position to be in. One thing which is likely to happen is that people get into the black economy because they cannot seek the support of the State.
What we have tried to do here, in a very fair and open way, is to find a balance between the two extremes, to find a reasonable and practical approach that would give the State control and lend dignity to the person involved, save the State money, and not create a problem for the Irish workforce, for the economy or those seeking. employment. For those reasons, I ask the Minister and the Government side to support this amendment. I feel it will strike a chord with people. It would be an important and controlled move forward within the context of Government policy and good practice. I ask for the support of all Senators, including those on the Government side, for this amendment. I hope the Minister will whisper to them to be supportive of us in this matter.
Amendment put.
The Seanad divided: Tá, 23; Níl, 25.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Cassidy, Donie.
- Daly, Brendan.
- Dardis, John.
- Fahey, Frank.
- Finneran, Michael.
- Fitzgerald, Tom.
- Henry, Mary.
- Honan, Cathy.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGowan, Paddy.
- Mulcahy, Michael.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Toole, Joe.
- Ormonde, Ann.
- Roche, Dick.
- Wright, G. V.
Níl
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Hayes, Brian.
- Howard, Michael.
- Kelly, Mary.
- Magner, Pat.
- Maloney, Seán.
- Neville, Daniel.
- O'Sullivan, Jan.
- Quinn, Feargal.
- Reynolds, Gerry.
- Ross, Shane P.N.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Wall, Jack.
Tellers: Tá, Senators O'Toole and Fitzgerald; Níl, Senators Cosgrave and Magner.
Amendment declared lost.
Government amendment No. 3:
In page 9, between lines 10 and 11, to insert the following:
"(d) intends to avoid removal from the State in the event of his or her application for asylum being transferred to a convention country pursuant to section 22,".
As I indicated on Committee Stage, I am introducing this amendment as a consequence to the introduction of an appeal mechanism in Dublin Convention cases. The development of the appeal mechanism is a consequence to the debate in the Seanad.
It may happen that persons who are advised that their applications are to be transferred to another State may lodge an appeal against the decision and then disappear in an effort to frustrate their possible removal. Such an action would be an abuse of the asylum process. Where there is a reasonable suspicion that such will be the case, it is proper that such a person be detainable and this should be a ground for detention under section 9.
This provision limits detention to cases where it is clearly needed rather than having a blanket provision allowing any Dublin Convention appellant to be detained. The inclusion of the provision in this section avoids the necessity of having to provide for detention in the regulations to be made under section 22 and the drafting difficulties of having that subordinate legislation apply the section 9 provisions regarding detention in cases not contemplated by the current section 9 (8). By including the detention provisions here I am ensuring that all detentions are properly seen under the direct supervision of the court.
The provisions in relation to the court were substantially improved in this Bill. The original Bill provided for 21 days whereas under this Bill it is now on a ten day basis. The use of detention in asylum cases is only warranted in extreme cases. In view of the current pressure on detention facilities in Ireland, it would only take place in exceptional conditions.
I am a little worried about this. Obviously, nobody wants to give succour to somebody who will avoid their obligations under this Bill. I wish to repeat what was said about the Dublin Convention. I fear a scenario in which somebody who had a family member who was previously transferred to a convention country and was not properly dealt with, finding themselves about to be transferred to that convention country. I accept what the Minister said about an appeal, which is the key point. If there had not been an appeal I would have been totally against this. I am sorry if the Minister has a higher regard for the way some of our fellow members of the European Union have followed up on their obligations under the Geneva Convention, although I accept what she said about how some of them might have faced greater difficulties in this area than we have. I accept the amendment is a logical addition to this section, given the existence of an appeal.
Amendment agreed to.
Amendments Nos. 4 and 5 are out of order as they do not arise out of Committee Stage proceedings.
I propose the recommital of amendment No. 4 on the basis that it arises out of the very narrow discussion we had on issues such as ordre public on Committee Stage. I understand the Government is not opposed to it being discussed at this time.
Acting Chairman
If the motion is opposed, under Standing Order 94 the Chair allows the proposer to make an explanatory statement of the reasons for the proposed recommital and a statement from the Senator who opposes the motion before the question is put. Recommital means the amendments are considered on Committee Stage and Members are allowed to speak more than once. Is the motion to recommit opposed?
No.
If it was not opposed I would not bother with a longer statement.
Acting Chairman
The motion is not opposed.
Bill recommitted in respect of amendments Nos. 4 and 5.
I move amendment No. 4:
In page 18, line 22, to delete "3".
I appreciate the Government allowing this amendment to be debated at this time because it is crucial. This issue arose from the long, convoluted discussions on Committee Stage on the importance of ordre public and ministerial rights. Section 17 (2) (a) (i) states “if the Minister considers that in the interest of national security or public policy... it is necessary to do so, he or she may... provide that section 3, 9 and 18 shall not apply to a person specified...” We are focusing on section 3, which in subsection (2) (a) (v) states that a refugee “shall have access to the courts in the like manner and to the like extent in all respects as an Irish citizen”.
Acting Chairman
I am sorry to interrupt the Senator but we should take the two amendments together as they are related.
I am happy to do that but it is not my intention, after reconsideration, to propose the recommital of amendment No. 5.
Acting Chairman
Therefore, we are only dealing with amendment No. 4.
This is a logical follow on from the discussion on public policy and national security. The Minister is being given extraordinary rights in certain instances. One of the recognised pieces of literature in this area is the Report on Immigration and Asylum Procedure and Appeal Rights in the Twelve Member States of the European Community by Jim Gillespie. Its fifth proposal states that every negative decision on an application duly made to the competent authority shall carry a right of appeal. A right of appeal is a very clear and fundamental aspect of legislation of this type. Section 17 states “where a report under section 13 is furnished to the Minister or where the Appeal Board sets aside a recommendation of the Commissioner” the Minister may make an order specifying the person would not have the protections of section 3. That means, in effect, the person could not make an appeal.
In anticipation of the Minister of State's reply that there would, in effect, be a judicial review, a judicial review is not an appeal procedure. That was not the kind of appeal anticipated in the report which I cited. A judicial review means the person has probably to get an injunction first and then get certain locus standi with the court. A judicial review is not a determination of the case but is simply the person putting forward a case to say why the Minister did not act properly under the Act.
If the review is decided in favour of the person that does not mean the decision of the Minister is reversed but that the Minister starts again. The decision of the court would give a clear signal to the Minister of the view of the court on his or her action but it would not overturn or reverse the decision of the Minister. The Minister would simply begin again and if another wrong decision was made the person concerned would have to go through the same procedure. That is not an effective or efficient way of doing business. There should be a right to appeal on the particular issue and a judicial review is not the appropriate way to do it.
Will the Minister of State give me her view on an aspect of the law about which I am not clear? Section 3 states that a refugee in relation to whom a declaration is in force "shall have access to the courts in the like manner and to the like extent in all respects as an Irish citizen". Section 17 (2) (a) (i) states the Minister may, if necessary, by order provide that section 3 shall not apply to a person specified in the order. If section 3 does not apply to them it appears they do not have access to the courts for a judicial review. Therefore, they could not apply for a judicial review on their own behalf. I do not understand how that could work. The Minister pointed out elsewhere that the person could challenge the Minister's decision by judicial review. However, that means the person would have to go to court. I do not understand how that can work if the person is deprived of access to the courts.
It seems that this section is unnecessarily, unfairly and with some degree of inequity depriving a non citizen of certain rights. I ask the Minister to accept this amendment which seeks to delete the words "section 3" from section 17 (2) (a) (i). I am not sure if the amendment requires a seconder.
Acting Chairman
No, it does not.
The amendment is designed to remove the restrictions on the rights of a person who has been granted refugee status, but who in the interests of national security or public policy the Minister has decided should not be permitted to remain in the State. The sort of person to whom section 17 (2) is intended to apply is the person who is genuinely fleeing persecution, where during the course of his application being processed it emerges the person is an international drug dealer, for example, or some other form of criminal.
The best example I could give the Senator — and the UNHCR have been at pains to make this case — is somebody who came here as a consequence of the conflict in Rwanda and was granted asylum because they were genuinely fleeing persecution. It subsequently emerged that that person was wanted by the international tribunal in relation to crimes of genocide. Similarly, going back 50 years, there was the case of a war criminal in Nazi Germany, genuinely fleeing from fear of persecution. The only two similar cases the Department has been able to refer to in relation to persons seeking to enter the country, not being deported, were those of a Nazi war criminal and a person who held high office in the South African military. It would be wrong of the State to inflict the dangers posed by such a person on our society, despite real political persecution in their home country. They may be a refugee but they may also be considered a criminal.
Section 17 enables the State to invoke the provisions of Article 32 of the Geneva Convention. Where such a person has been granted refugee status, they may be expelled from the State and may be subject to an appropriate regime, pending expulsion. They do not lose their refugee status, but may be expelled from the State. Paragraph (b) of subsection (2) provides that such a person cannot be removed from the State for a minimum of 30 days after the decision is made. This meets the requirement of Article 32, paragraph 3, of the Geneva Convention, that a person be given a reasonable time to seek legal admission to another country. It has a further effect in that the refugee may seek to have the decision of the Minister reviewed by the courts.
As often occurs in analagous cases, the refugee has the option when seeking a judicial review to seek an injunction at the same time preventing the Minister from executing the removal until the judicial review proceedings have been determined. The High Court in deciding to grant such an injunction will weigh up the relative merits of the individual's interests in remaining here against the public policy benefit of removal and pursuit of the proceedings from abroad. The provision as it stands excludes from such a person the right of the normal refugee set out in section 3 of the Bill. These rights include the right to reside here and the right to acquire land and other property here. The provision also effectively terminates the right to remain provided in section 9(2). Do we want this protection for our society? The amendment proposed would leave the Bill in an ambiguous state where it would not be clear which right prevailed over which. It would be unclear whether the Minister's power to deport such a person, a right envisaged by the Geneva Convention, would be superior to the right of the person to remain in the State, provided in section 9, and the rights to reside and own property here provided in section 3. The inherent inconsistency is obvious.
Senators have not put down amendments contesting the principle of the Minister's power to remove persons to whom refugee status has been granted, where national security or public policy considerations apply. No Senator impugned this provision of the Bill on Committee Stage, either directly or by inference. That being the case, I assume they accept that principle. It is clear the Geneva Convention also accepts that principle, hence Article 32. Senators must also accept the logical consequence that the Bill should have an internal consistency. There is no doubt that a person who is affected by the decision of a Minister under section 17 has a right to have the decision reviewed by the courts. It is a long-standing principle of common law that any decision of a Minister is reviewable and nothing in this Bill can be regarded as limiting that. That is one of the reasons the minimum period of 30 days is provided in section 17 (2) (b) and why notification must be sent to the applicant's solicitor under paragraph (c) — to give the applicant and his solicitor the opportunity to consider the possibility of judicial review.
I add a final point which I suspect is of great importance to the Senators, although it has not been alluded to in the contributions so far. It is very clear that the provisions of section 5 prevail when a decision is made to expel. The Minister may not expel the refugee to a country where there is a well-founded fear of persecution. If we had given refugee status to somebody who subsequently emerged as an international drug trader or to someone who was leaving a conflict in a country like Rwanda and it subsequently emerged they were possibly guilty of, or involved in, genocide, we would not be entitled to expel them back to Rwanda, where they may have a well-founded fear of persecution, because of the nature of the conflict there. The principle of non-refoulement in section 5 overrides this section. I ask the Senators to consider that. The non-refoulement principle applies in all cases. I hope this meets the Senators' concerns.
It does not entirely. What causes us most concern is the troubled area of access to the courts. It seems the Bill as it stands specifically denies access to the courts in like manner, to like extent and in all respects as an Irish citizen. The Minister has made an ad hominem case against a hypothetical person, who may be a war criminal or an international drug dealer. They may not be, and that is another hypothetical scenario. The ad hominem argument is rather dangerous. If we set up a wicked person as the kind of person exclusively contemplated by this Bill, then obviously nobody wants the country swimming with war criminals. There may well be somebody who does not fall into this category or has been inaccurately labelled in this manner. The Minister indicated to us when a group of us met with her earlier this afternoon, that the right to a judicial review survives. This is true, but I do not think the Minister has any constitutional capacity to remove it anyway.
Exactly. That is my point.
It is no big deal to tell us refugees have a right to judicial review because the Minister could not have taken it away even if she wanted to. We are aware of the situation, as some of us have been involved. I took a case for judicial review against this House and won it. It is a very cumbersome mechanism and a weapon of last resort. It is a bit of an infliction to say that refugees have access to the courts only by this extreme measure. Why is the Minister suspicious of the courts? She must have some degree of suspicion.
Let us take the case the Minister stated as an example. Somebody has been admitted in good faith and given status as a refugee. It subsequently transpired that they have an unsavoury record as a war criminal, participant in genocide, major international drugs trafficker or whatever material one uses to blacken their reputation. Let us suppose it is all true. How vulnerable does the country become by giving such a person access to the courts? Is it assumed that the courts will be less vigilant in protecting the country against international drugs traffickers or against international war criminals? I do not think so. If evidence of this person's previous misdeeds were then brought before the courts I would assume the courts would find in the Minister's favour and not in favour of the war criminal. I cannot see any reason, therefore, to suppose that by allowing an applicant the right of appeal through the normal court channels, this would necessarily open the way to them to being admitted if they were unfit persons.
At the core of the argument by the Minister of State appears to be a suspicion that the courts may, or indeed would, admit to this country persons who were unfit to be so admitted. The Minister of State has produced no evidence that a court would take this decision. Why does it appear to persist in her mind and that of her advisers? For this reason I am happy to second and support the amendment.
I do not understand the logic of the Minister of State's position. She is at pains to point out that there will be 30 days before the order is implemented, as set out in section 17 (2) (b), and that everything can happen during this period of time. However, I do not know if the person has the right to go to court because such a right in this situation is granted under section 3, which does not apply to persons under consideration here. Perhaps some group or representative may take a case on behalf of the person.
Section 17 (2) (b) states:
A person with respect to whom an order... is made shall not be required to leave the State before the expiry of 30 days from the date of the making of the order.
I have never seen a judicial review come before a court in so short a period of time. I know it has happened but I have never had any experience of it.
It happened in my case.
An injunction may take place within a week and a judge may grant a hearing more quickly. However, if it is complicated and if the defence argues that more time is needed to prepare its case the matter will often go beyond 30 days. In the education area, where cases would not be urgent, they would never be heard within 30 days. In addition, there is no requirement for there to be a hearing within 30 days. A situation could arise where a person, in seeking a judicial review which would not be heard within 30 days, could be expelled before the case came to court.
Different issues arise in other parts of the Bill where appeals are made. The Geneva Convention and other aspects of the legislation make it clear that where a person is appealing a ministerial decision the person cannot be expelled. However, this protection does not apply where a person is seeking a judicial review of a ministerial decision.
The basis on which a person could go to court is not clear; nor is it clear that a person could not be expelled while he or she was waiting for a judicial review to be heard. It is also not clear that because a judicial review is not an appeal as such, a person would have the protection required for refugees during the course of an appeal.
I do not understand how the Minister of State can argue against the reasonable case being made to her with regard to covering and protecting the position of all involved. Section 3 gives people the right to go to court. By making those under consideration here not entitled to the cover afforded by section 3 it could be argued that they are not entitled to take a case to court. In the first instance somebody may be able to determine that they have some locus standi and take a case on their behalf. Second, it is not a process of appeal and the protections that persons seeking asylum might normally have under an appeal will not apply. Third, a person seeking a judicial review could well be expelled during the course of the review being heard, adjourned or deferred. In the light of the arguments made by the Minister of State on openness etc., will she concede this point?
In this Bill, which is acknowledged to be extremely liberal, we have to draw a balance between the protection of our own society and the rights of the applicant. We seek to do this. We are considering grounds relating to ordre public and national security. These are not trivial grounds. I could only give the examples which were available to me and which related to very serious situations where people were refused admission of whom it would be generally acknowledged that it would not be in the interests of public policy to have in this country.
We have a duty to draw the balance in terms of protecting Irish society and it is done in this way. Given the time period allowed and given the principle of non refoulement, which is set out in section 5, the rights of the individual are protected overall in this Bill. With regard to the principle of non refoulement, the major fear of those who come into the category of being a threat in the context of national order and public policy may be in respect of the country to which they may be sent. The section 5 provision means that they cannot be sent to a country where they have a well found fear of persecution, even though one might understand why this may be so.
I did not give the example of an international drugs dealer or an international criminal lightly because, unfortunately, there could be a situation in which the asylum seeking provisions here would be abused and we would consequently discover that the applicants were undesirable because they were drug traffickers.
Again, we must draw the balance in seeking to protect Irish society, but there is nothing in the Bill which prevents access to the courts. Indeed, constitutionally, it would be impossible to prevent access to the courts because the actions of Ministers are always subject to review by the courts. If a decision of a Minister in this specific instance was lightly made, I cannot imagine our courts seeking to prevent the provision of an injunction and a review on a speedy basis, because it is matter of such importance with regard to the individual. The courts have always been ready to respond where, as in this case, the individuals presumably might hold that it was a very serious question regarding their lives, liberty and future.
The balance is properly struck in the Bill between the need to protect our own society from what I would imagine to be a rare case where, essentially, our goodwill in granting refugee status subsequently turned out to have consequences in terms of the individuals granted that status because they were, on grounds of national security or public policy, deemed to be highly undesirable in being in this country.
I find it extraordinary that a Minister of State from the Department of Justice would see my demand that somebody have the right of access to the courts as being in some way contrary to or undermining our duty to protect society. I do not understand it.
The Minister keeps talking about abuse. Is she insinuating that my amendment is in some way an abuse or moves away from our duty to protect society? I believe it would do the opposite. I cannot see the Minister's point. I am utterly confused. The Minister said that nothing in this Bill can deprive somebody of their right of access to the courts. Section 3(2)(a)(v) states that a refugee "shall have access to the courts in the like manner and to the like extent in all respects as an Irish citizen". Why did the Minister find it necessary to include this provision if she is now telling me that nothing can prevent access to the courts? What am I doing that is different from what the Minister did if we all had access anyway?
Is the Minister telling me that by giving somebody access to the courts I am in some way giving less protection to Irish society? The courts are there to protect society. It is not politicians and Ministers who protect society; it is the courts. The arms of democratic society stretch to the courts. People should have access to the courts. The Minister is telling me that she can issue an order to prevent somebody having access to the courts.
No.
Section 17 provides that the Minister may order that section 3 shall not apply to the person specified. Section 3 includes the statement a person "shall have access to the courts in the like manner and to the like extent in all respects as an Irish citizen". The Minister is now telling me that despite the fact that she issues an order saying they will not have the protection of that section, they will nonetheless have access to the courts. She is also telling me that even if it was never written in the Bill, people would have access to the courts. One must then ask why she put it in there in the first place.
The Senator has put the matter very eloquently. Section 3 sets out the rights to which refugees are entitled. It is important that we set out those rights, but there is legal argument that the section is superfluous in that there are no restrictions on the access of non-nationals to the Irish courts. Many of the relevant constitutional provisions refer to a person rather than a citizen. These include Article 38 and Article 40.2.2º, which provides for habeas cor-pus. However, some provisions refer specifically to the citizen. Article 40.1.1º states that all citizens shall be held equal before the law. Article 40.4.1 provides that no citizen shall be deprived of his personal liberty, save in accordance with the law.
To avoid any doubt the Attorney General's office was of the view that the Bill should provide for a specific right of access to the courts. That is the positive provision in the Bill. However, this section provides for a situation where somebody — the UNHCR is very clear on this point — may be entitled to refugee status and understood to be a refugee because they are fleeing from persecution — for example, a former Nazi who fled Germany after the war or a person who has fled the conflict in Rwanda where they may have been involved in genocide. They may qualify under the Geneva Convention definition of refugee. Similarly, a person who is fleeing from persecution may subsequently emerge to be involved in drug dealing.
This does not mean that their position as a refugee is undermined. In section 17 we consider on grounds of national security and public policy that it is not in our interest that they be allowed to remain in this country. There is provision for a minimum period of 30 days which allows for the notification of the applicant's solicitor under paragraph (c) and gives the applicant and his or her solicitor the opportunity to consider the possibility of applying to the court.
The general right of the courts to review any decision by a Minister stands. It cannot be arbitrarily removed. Section 3 sets out a lengthy set of rights to which asylum seekers are entitled. In this case, where issues of national security and public policy are involved, we have withdrawn section 3. However, the overriding advice from the Attorney General's Office is that although we included the provision in the Bill, we would never have had a general power to remove the right of access to the court because the Constitution refers to citizens in certain important sections.
I realise this discussion has gone on for a long time, but the difficulty is that the Minister is not dealing with my issues. Can we agree that we do not want Nazis, war criminals or drug dealers here? We are all agreed on that. I think I hear the Minister say that something I am saying is accommodating these people in some way or will allow that to happen. My question is very simple. Why can we not go to court? What is the problem?
The simple answer is that they can go to court. This Bill must strike a balance between the protection of Irish society and the protection of the rights of asylum seekers under the Geneva Convention. There is little disagreement and perhaps at this stage semantics are failing me because I do not have the Senator's verbal skills or training in the area.
The section cannot seek to remove the right of application to the courts. It can only be invoked pursuant to national security and public policy. It would be an unwise Minister who would take a decision lightly in the exercise of these powers. After trawling through 15 years of records in the Department of Justice, the only two circumstances of which I am aware relate to an ex Nazi war criminal and a South African who had been involved in the South African military at a high level.
The Minister spoke about balance between protecting the rights of asylum seekers and protecting the Irish people. I agree absolutely and Senator O'Toole has developed effectively on points I was making in my first contribution on this amendment. Why is the Minister suspicious of the courts?
I am not suspicious of the courts.
Does the Minister not think the courts are capable of protecting the Irish people and that recourse to the courts by an asylum seeker would be an effective protection of the State of Ireland against the malign activities of international war criminals, drug dealers and so on?
The Senator has put it exactly. The amendment would tip the balance against the Minister's right to deport such a person. That right is envisaged in section 32 of the Geneva Convention. The amendment would create a superior right, that of the person to remain in the State and to reside and own property here, as provided in section 3. The amendment would tip the balance the wrong way and at the end of the day that is a matter of opinion.
It is more outlandish than outrageous to suggest that somebody against whom an order has been made to leave the State would want to stay on and buy some land or go to court in order to exercise his or her right to travel or join a trade union. The only right applicable in any reading of that section is the right to go to court. A person against whom an order has been made cannot say that before they go they want to buy some land. The only right a person can seek to have implemented under section 3 is the right to go to court. Nothing else makes sense.
The Minister of State cannot be seriously telling us that somebody against whom an order has been made to leave the State will suddenly say they want to go to an auction to buy a house and that they cannot be asked to leave until it has been purchased. What she said is outlandish. A person can only challenge the Minister's point of view. What the Minister has said is quite dangerous, that is, that giving a person the right to access the court is giving them the right to stay in Ireland. I do not see it that way but that they must make their case to a democratic forum to sort out such difficulties. She seems to be afraid that the Minister's decision could be subject to — dare I say the words — openness, transparency and accountability in a court of law, which would be very worrying if somebody was doing something wrong.
The Minister must recognise that if this Bill is to be as liberal as we say it should be, a person should be given the right to go to court, which is the only right which could be exercised under section 3. Again, I ask the Minister to accept the amendment.
I am also a little worried. I do not believe the Minister of State intends to reject this case. However, when she speaks about a diminishing of the ministerial power to expel somebody and altering the balance in favour of the applicant for asylum, she is being a little too nervous of her powers. It appears that what she wishes to sustain is a situation where the Minister has placed himself or herself above the operation of the law or, at least above the review of his or her actions by a court, leaving it only to be reviewed by the cumbersome procedure of a judicial review.
The Minister is taking what, in extreme circumstances, could be an arbitrary power upon herself and placing herself above the law. To support her case, she is conjuring up a negative scenario and painting the applicant as a convicted war criminal when there may not have been any conviction but a rumour that they are undesirable. A person may have been incorrectly convicted of a crime. It may transpire that allegations or convictions made against a person from Rwanda, which is very troubled, or another area, would not be sustained in an Irish court.
We should abandon the scene the Minister so vividly painted as if there is a queue of international war criminals trying to subvert this country or to gain access to do damage to the State. Let us imagine the contrary situation. Let us imagine where somebody has come to this country, who is not such a person, but has been malignantly painted as such by a political opponent. Under the Bill as it stands, such a person would not have the rights one expects in a democratic society, that is, recourse to the courts. They would only have the very limited and attenuated right to seek judicial review. Such a person could be badly advised and could have limited access to legal advice and may not be aware this route is open to him or her.
The Minister is taking an extravagant power to expel somebody without leaving that person open to the possibility of seeking a proper examination of the case in the court. The only reason for her to be nervous is that there must be a suspicion that the courts would make a wrong decision. If she believes, as I do, that the courts, which are effective and capable in fulfilling their role of defending the integrity of the State, would make the right decision, surely they would consent to the expulsion of an unsavoury person from the State.
The State is not being placed in jeopardy by allowing the courts to operate. If they were to make a series of wrong decisions in these serious matters and open up the possibility of the integrity of the State being threatened by allowing international criminals to avoid the consequences of their actions by coming here to live, what confidence could we have that they would act in a more responsible fashion in less serious but significant matters with which we, as citizens, expect them to deal? The Minister unintentionally appears to be impugning the capacity of the courts to operate efficiently and appropriately.
It is a question of drawing a balance between the protection of our society and protection of the right of the asylum seeker. The UNHCR is satisfied that this proposal fulfils our obligations under the convention. It also ensures that appropriate provisions are made to safeguard the security of the State. I hope Senators agree that it is a good compromise and balance. There is nothing in this provision which can constitutionally prevent any person having access to our courts. It is important that the Bill sets out clear signals that, while we will have a very generous structure to access asylum seekers and giving them rights and entitlements, we will not hold ourselves open to being abused.
The Senator may feel that some of the examples I have given are farfetched. However, I only have to point to the recent history of former Yugoslavia, Rwanda and South Africa and the situation in South America, specifically in relation to drug dealing. Parts of the world and societies have suffered enormous upheavals, wars and other forms of strife. People are genuinely fleeing persecution in those societies. Although they may be entitled to refugee status, we may not want to have them in our society. While we do not want to issue an invitation to such persons, nothing in the Bill can take away the right of any asylum seeker to appeal or to apply for the protection of the courts. As I said, that is impossible in terms of the Constitution. The inclusion in section 3 of rights of access to the courts, which could be argued by some legal experts to be redundant, is part of a platform of rights to which an asylum seeker can have access.
Again the Minister spoke about the right of the State to expel people of a particular background, that is, drug dealers and war criminals. We have already said that nobody objects to that. The Minister has failed to give us any indication why a person exercising their right to go to court, which is the effect of my amendment, threatens the State; I suggest it threatens the Minister. We are talking about a case which will come to the Minister, having been dealt with by the commissioner or the appeal board, who may decide to expel this person despite their decisions. That persons should be given the right to appeal to the courts. However, the Minister is saying that by doing so, we tilt the balance away from her right to expel somebody. This suggests that, in some way, allowing somebody access to the courts takes from the State's right to expel them. I cannot understand this. There is a logical break there, but that gap remains to be bridged. All it means is that the Minister does not have to explain his or her action in the courts.
I am also not at all certain that our Constitution can grant rights to non-citizens. I recognise the distinction made between a person and a citizen, but it is not clear how far that can be extended. I asked a leading constitutional lawyer yesterday whether a person living in this country had the right to work under the Constitution and it was his considered view that this was not so. I am sorry these amendments are being taken in this order because I will be repeating the Minister's words back to her when we come to the question of a person living in this State having the right to work, despite the fact that he or she was not a citizen.
I do not intend to push this amendment to a vote because my logical arguments have failed to make an impact on the Minister. I listened closely to the Minister's points about putting provisions in the Bill, which are not quite necessary, to establish certain rights. I hope the Minister remembers this when we discuss my next amendment because it deals with that precise argument. I regret that the Minister has not seen it possible to accept this amendment, but I do not intend to push it to a vote.
Could I suggest another hypothetical situation? Let us imagine for a moment that the Minister's worst fears are justified. Mr. Pol Pot has survived his recent demise and he arrives in Ireland. The Irish Government, being naive in these matters, is unaware of his colourful past and admit him because it is correctly informed that should Mr. Pol Pot return to Kampuchea, there is a considerable likelihood that one of the relatives of the two million people he did to death would do him in in return.
Mr. Pol Pot is given this status. The American Government, having supported Mr. Pol Pot, decide to dump him in the way it does and it snitches on him to the Irish Government and tells it that Mr. Pol Pot is not the upstanding person it thought but is, in fact, a well known international war criminal who has murdered two million people. There is shock and horror all round and the Minister makes a decision to push him out. That should not cause any convulsion of popular distress. Does the Minister suppose that an Irish court would overturn such a decision?
Mr. Pot would have 30 days to respond. He would no doubt consult some of our eminent legal eagles and could apply for an injunction. Mr. Pot is a person, although this might be questioned by some.
He is a dead, deceased and defunct Pot.
I think this debate is going to pot.
As handy as a small pot.
There is nothing here that prevents his access to the courts, but we do not set out in the Bill by excluding the provisions or to send Mr. Pot or his counterparts a special signal that in the event of their being rumbled, that they have a stated right of access to the courts. Although this argument may sound Jesuitical, this is where the balance is being struck. The rights are there; they are inherent in the Constitution.
What if the person does not know about them?
No doubt he will go to the best legal brains in the country, who will rapidly advise him. It is a question of balance and I believe we have struck the correct balance in this case.
Amendment, by leave, withdrawn.
Amendment reported and, by leave, withdrawn.
Acting Chairman
Amendment No. 5 is out of order as it does not arise out of Committee Stage proceedings.
Amendment No. 5 not moved.
I move amendment No.6:
In page 25, between lines 23 and 24, to insert the following:
"(10) The provisions, protections and rights granted by the Geneva Convention may not be restricted or set aside by any part of this Act."
Senator Norris mentioned Pol Pot. In Dingle we have a phrase "as handy as a small pot". This is as handy as a small Pol Pot in terms of making political argument.
I want to bring back to the Minister her arguments about certain rights being necessarily or unnecessarily underpinned and re-emphasised by a statement in the legislation. My amendment proposes a simple wording, with which I am sure there will be no disagreement, that "the provisions, protections and rights granted by the Geneva Convention may not be restricted or set aside by any part of this Act.".
A major discussion on whether the Dublin Convention or the Geneva Convention should take precedence took place on Committee Stage. The Minister clearly and definitely made the case that the Geneva Convention takes precedence. The Minister also said that the phrase "determined, in keeping with our common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention" was in the Dublin Convention. The Minister and Senator Mulcahy also had long arguments, which those of us political innocents did not understand, about what Fianna Fail did or did not do when it introduced this legislation.
The easiest way to approach this was to move away from that argument so as not to have it again — I plead this from the Minister and Senator Mulcahy. This amendment does not seek to put the Geneva Convention against the Dublin Convention but arises from Senator Mulcahy's valid point that this legislation could undermine part of the Geneva Convention and possibly create a conflict.
I do not think it creates any great conflict, but there are places where it could be interpreted incorrectly. Whether I am right or wrong on that, it will not cause any difficulty to either the Minister or myself to have restated in this legislation an entitlement on which we both agree. This will allow the Minister to emerge with glory as being the Minister who ensured that the international Geneva Convention took precedence over her legislation. That is an attractive proposition and should not create the slightest difficulty.
I ask the Minister to consider including the whole Geneva Convention as part of one of the Schedules of this Act. It is important that it is accommodated in Irish legislation. In doing that, it will also be clear that this Bill is only implementing it. It does not give any offence to the Minister's thinking, undermine in any way the principles she is trying to achieve or make this Act more or less liberal than she has led us to believe. It only makes it clear that this cannot, will not and should not be the case.
Should any of the Minister's successors be irresponsible and inconsiderable enough to twist her well formed wording and deprive anybody in any way of their rights, entitlements or protections under the Geneva Convention, the person or his lawyer can point to this provision and say that nothing can allow that to happen. It will save us a lot of money in court fees, it will allow the case to work its way more quickly through the system and will deter people from trying to deprive refugees of their rights under the Convention.
I ask the Minister to do the decent thing at this stage and accept this most reasonable and practical amendment, which is amenable to all national and international thinking on the issue.
It comes as a considerable shock to me that Senator O'Toole is a political innocent. I would hate to see a politically guilty person.
The discussion on this issue took some time on the last occasion. My first contribution lasted 45 minutes and I would speak for 90 minutes today if I thought I could convince the Minister of the extreme importance of the amendment.
If the Senator intends to do so, perhaps he could let us know so we can go and have tea.
I did not enter the House for the purpose of the Senator's refreshment.
I gathered that.
I ask Senator Mulcahy to address the Chair.
I was interrupted by Senator Norris.
Acting Chairman
The Senator should speak to the Chair on the amendment.
As I was saying before I was——
So rudely interrupted.
——heckled, despite what might appear as a light-hearted introduction to this topic, in my considered view no matter is more serious than the amendment. As I said on Committee Stage, this is a matter of conscience. As Senator O'Toole correctly stated, the section does not mention conflicts or the Dublin Convention. The amendment seeks to make the Geneva Convention the primary and supreme source of refugee law and practice in Ireland. The Minister proudly stated on several occasions that she is not a lawyer.
Thank you, Senator.
However, I remind her that the source of the legislation was not the previous Government or the current Administration. I am sure the Minister will correct me if I am wrong, but the source of the Bill is the Gutrani v. the Minister for Justice and Ireland case, which went to the Supreme Court. The result of that successful case was that the court held there was an obligation on Ireland to give legal and binding effect to what had been an informal letter of co-operation with the UNHCR in Geneva. This case is the real and primary source of the legislation.
I think the Senator has the wrong case because Mr. Gutrani, whom I met, lost his case on every point but was granted humanitarian leave to stay. Perhaps the Senator has another case in mind.
I am referring to the Gutrani case.
He lost it.
In the Gutrani case, which I read and studied, it was held that the letter of understanding between the Department of Justice and the UNHCR must be upheld and supported. The court did not state a law had to come into being as a result, but that people were entitled to rely on it. I will not stand corrected on this point and I will debate it at length.
It is a matter of fact that he lost.
It is not a matter of fact. The Bill arose from that decision and the primacy in our law is the Geneva Convention. The Dublin Convention has been appended to the way the Geneva Convention will be interpreted and administered. The Dublin Convention will not have primacy but only a meaning in so far as it interprets and administers people's rights under the Geneva Convention.
The wording of the amendment is excellent. It states that the provisions, protections and rights granted by the Geneva Convention may not be restricted or set aside by any part of the Bill. On Committee Stage the Minister accepted there could be a conflict between the Dublin and Geneva Conventions. This is a matter of record, but the amendment is only concerned with the point that the terms of and rights provided by the Geneva Convention will not be restricted or set aside by any part of the Bill, however that might occur and whether it involves a particular part of the Bill or the Dublin Convention. It will be a matter for the courts to decide whether a particular part of the Bill restricted or set aside any of the provisions, protections or rights granted by the Geneva Convention.
In common with Senator O'Toole, I hope the Minister will take the amendment on board. If the Minister genuinely supports the proposition that the Geneva Convention will be the primary and overriding source of law and rights in relation to refugee applicants, I fail to understand how she could in the same breath try to disagree with the amendment. On the last occasion the Minister accused me of going on a voyage. I was reminded of the voyage to the bottom of the sea and if the Minister opposes the amendment, she will go on a voyage to the bottom of democracy.
Ireland has not signed a more important international agreement in terms of human rights than the Geneva Convention. If any part of the Bill, even to the slightest extent, has the effect of whittling away the force and integrity of the convention, we will have done ourselves, the international community and the people who come before the Irish authorities seeking refugee status under the Geneva Convention a disservice. I hope, given the meaning and goodwill of the amendment, which I did not draft, the Minister will accept the amendment. I urge her to do so and I second the amendment.
In deference to the celebrated jurisprudential wisdom of the House, I will with some difficulty resist the temptation to quote at length from the case of Bubble and Squeak v. Pol Pot. I shall confine myself exclusively to three points, the first of which is that Ireland is a signatory to the Geneva Convention. This suggests we agree wholeheartedly with it. Second, as Senator O'Toole pointed out, the Geneva Convention is part of the Schedule to the Bill and there is at least some intention to incorporate its values in the Bill. During the earlier Stages, the Minister maintained that the Geneva Convention prevailed in circumstances where conflict might arise. I assume, therefore, it is not problematic to make this explicit in the Bill.
The third point is that the occasional difficulty which arises in the House when a Minister finds himself or herself in the awkward position that by permitting one amendment the Bill must go back to the other House, does not arise in this instance because the Minister put down her own amendment. It would simply be adding a light burden to the work of the other House to accept this amendment and so, with my distinguished colleagues, Senators O'Toole and Mulcahy, I support this amendment.
I do not support this amendment. Article 5 of the Geneva Convention refers to the rights granted apart from this convention and states "Nothing in this Convention shall be deemed to impair any rights and benefits gained by a Contracting State to refugees apart from this Convention." In a legal sense that article is directly in contravention of the Senator's proposed amendment because there are directly conflicting rights. The legislation before us gives certain rights which are not covered by the convention. For example, this would include the definition of a refugee and also the rights which we give to the immediate family of the refugee. They are not granted under the convention. The Senator is accepting the Geneva Convention as taking precedence by the proposed amendment. It requires that the provisions of the Geneva Convention are not restricted or set aside by our domestic legislation. It would seriously affect many of the rights which we are giving under our domestic legislation and cannot be tolerated.
I would refer the Senators to the Title of the Bill. It is a Bill to give effect to the Geneva Convention. I feel increasingly like Alice in Wonderland in relation to Senator Mulcahy and his voyages except I am not having half the fun that she had.
I am sorry about that.
It is difficult to follow the logic of the Senator's arguments because he veers from one extreme to the other. At the outset of the discussions on this Bill, Senator Norris was fulsomely praising the fact that we had stepped beyond the bounds of the Geneva Convention in relation to gender and sexual discrimination and orientation being the grounds for refugee status. We have tried to expand on the Geneva Convention in a way which I modestly hope will serve as, perhaps, an inspiration to others.
As a former grammarian I offer a point of professional information to the Minister of State. Expansion is not the same thing as restriction.
If the Senator looks at the Title of the Bill, the Bill is designed to implement the Geneva Convention. That is the only point on which I agree with Senator Mulcahy. We have not restricted ourselves entirely to the Geneva Convention drawn up in 1951. We have gone for a Bill which takes into account the changed circumstances and the circumstances in which a well founded fear of persecution arise. Senator Henry quoted from a legal source in Trinity College of international standing in relation to refugee law and who gave a definitive opinion during our earlier discussions that the Geneva Convention is undoubtedly the primary document. The concern here relates to the Dublin Convention. I sympathise with what Senators are saying. I have no difficulty with it, but I am advised by the parliamentary draftswoman that the amendment is superfluous and does not make sense because we are not transposing the Geneva Convention directly into Irish law. We are bringing into effect a Bill based on the Geneva Convention. If this Bill is passed we are allowing for the Dublin Convention to be brought into effect; but, as we heard from Senator Henry, that Convention is subservient to the Geneva Convention. The Senators' points are adequately catered for in this Bill.
I do not know what point Senator Gallagher was making. I have read article 5 many times since the Senator has referred to it. It states "Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention." Any State can grant further rights than are in the convention. We have done that in certain cases. There is nothing in the convention to stop us from doing it. We are encouraged to do it in many cases.
Article 10 of the Geneva Convention says that "Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory." As far as I know, there is nothing in the piece of legislation we are putting through covering that. Am I right in saying that we have not dealt with that?
Yes.
This is a point to illustrate something. I am not suggesting that we should have. The Title of the Bill says this is "An Act to give effect to the Convention relating to the status of refugees" etc.. The Minister of State said it is, in other words, to implement the Geneva Convention and I do not disagree with that. The Minister of State will accept the point that we did not set out to implement every last comma, dot and crossed "t" in the Geneva Convention; nor did we ask for that to be done at any stage because some of them would have no relevance. In some situations we gave something more than what was required of the Geneva Convention. In other cases, like the obtuse example which was just given, we did not refer to it at all. There is nothing wrong with that, because it is not simply the implementation of the Geneva Convention in total that we were about here nor should it have been.
I compliment the Department on looking at it, going through it and coming to conclusions from an Irish point of view. It should be, and is, an Irish piece of legislation. It is a good piece of legislation, despite the arguments we are having about specific points. The Geneva Convention says that nothing in the convention should be deemed to impair any rights and benefits granted by the contracting state apart from the convention. It is not the precise implementation, because we have gone beyond it in places. It envisages, anticipates and encourages contracting states to go beyond what is required in the convention. There are other aspects which we have not implemented. It was not necessary to implement them.
There is one clear and logical way of dealing with it in order to cover all these aspects of taking some things precisely, taking some things a little more, taking some a little less and not dealing with certain things at all. The provisions, protections and rights granted by the Geneva Convention may not be restricted or set aside by any part of this Act. If these are improved upon in this legislation, that does not create any problem. If certain rights and protections in the Geneva Convention are not dealt with in this legislation, that does not create any problem either.
It does. The Senator's amendment says that they cannot be set aside specifically. It says the provisions cannot be set aside by this Act.
As the Senator has quite rightly pointed out in terms of issues which are not dealt with in the legislation, they cannot be set aside by our legislation. Nothing can do that. If people have a right, they have a right. We cannot set aside those rights in anything that we might do. Neither is there any intention to do that.
That is what the Senator's amendment intends to do.
On a point of information, I would be happy to give way to Senator Gallagher on the basis that she outline those rights which are being set aside.
In response to Senator O'Toole's request, his proposed amendment states "the provisions, protections and rights granted by the Geneva Convention may not be...set aside by any part of this Act." The provisions, which include everything in the convention, cannot be set aside by this Bill and that is why I say it differs from what he alleges he is attempting to do.
I want to be clear that that is the Minister's position. Is the Minister telling me that there are aspects of this Bill which in some way could be used to set aside rights in the Geneva Convention, because it goes against everything she said so far?
No. The point is that we have sought to expand on the Geneva Convention——
I accept that.
——theoretically, because I cannot envisage it happening in practice.
Acting Chairman
All that has already been said.
I can imagine that that expansion could be open to challenge in the terms of the Senator's amendment. I am not a lawyer. I am only going on what the parliamentary draftswoman has advised, which is that this is an inappropriate additionality.
The Senator is seeking to nail down something on which there is already absolute agreement, that is, that this Bill is one to give effect broadly to the Geneva Convention. However, the Geneva Convention is not being transposed directly into Irish law for the good reason which the Senator outlined — the convention arose after the war and several sections of the convention deal with the post-war European situation.
Acting Chairman
The Minister has explained the matter well.
The Minister virtually indicated that I am misunderstanding her. Has she confirmed, first, that the Bill does not seek or cannot be used in any way to set aside—that means deny — any of the rights in the Geneva Convention?
Yes.
Thank you. Second, the Geneva Convention allows for states to give additional rights and protections to those required by the convention and the Minister has done that.
It could not stop it.
Yes. The Minister used the word "additionality", which has other meanings; but that is exactly what I am trying to achieve. I am trying to ensure that these uncertainties into which we are heading become unnecessary, because it is clear that the convention allows and encourages states to make extra provisions. The Bill does so and by so doing the State is fulfilling the most positive action required under article 5.
There is nothing in the Bill which can be used to diminish the rights of refugees or others in any way under the Geneva Convention. The fact that the Bill is silent on certain issues is no reflection on the Minister, the Department or this House. It is felt that it was not necessary to legislate for some of those measures, and that is quite correct. People had rights under the Geneva Convention before they were legislated for and they will still have rights in aspects of the convention which are not legislated for in this Bill and that will not impact in any way otherwise. That is just a clearly logical position.
For all those reasons it becomes more and more apparent that there is a great need to add this provision to the Bill and make assurance doubly sure, in the words of the bard. Therefore, the Minister should accept this amendment. It does not damage any of the Minister's provisions. In fact, it copperfastens and underlines the good work in most of this Bill. I commend this amendment to the Minister.
Amendment put.
The Seanad divided: Tá, 23; Níl, 24.
Tá
- Bohan, Eddie.
- Byrne, Seán.
- Daly, Brendan.
- Dardis, John.
- Finneran, Michael.
- Fitzgerald, Tom.
- Henry, Mary.
- Honan, Cathy.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGowan, Paddy.
- Mooney, Paschal.
- Mulcahy, Michael.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Toole, Joe.
- Ormonde, Ann.
- Quinn, Feargal.
- Roche, Dick.
- Wright, G. V.
Níl
- Belton, Louis J.
- Burke, Paddy.
- Calnan, Michael.
- Cashin, Bill.
- Cosgrave, Liam.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Hayes, Brian.
- Howard, Michael.
- Kelly, Mary.
- Magner, Pat.
- Maloney, Seán.
- Neville, Daniel.
- O'Sullivan, Jan.
- Reynolds, Gerry.
- Ross, Shane P. N.
- Sherlock, Joe.
- Taylor-Quinn, Madeleine.
- Wall, Jack.
Tellers: Tá, Senators O'Toole and Fitzgerald; Níl, Senators Cosgrave and Magner.
Amendment declared lost.
I move amendment No. 7:
In page 28, line 37, after "3." to add:
"At a meeting where only 3 members of the Appeal Board are present, only one of the two who are officers of the Minister and the Minister for Foreign Affairs shall be present.".
I have no intention of delaying the House on this amendment. I spoke at length on Second Stage about why I felt it was advisable if the quorum for the Appeal Board was to be three that two of them should not be appointees of the Ministers for Justice and Foreign Affairs. These officials would be obliged to disagree with cases which were already made by their Minister. Naturally, I have as much confidence as the Minister has in the Irish electorate and I know it would never, for example, elect a fascist Government. I agree that civil servants are in general very independent, but I have served on boards with civil servants and they have to take some accounts of the views of the Minister they are representing. We could be faced, not with two of the fine, upstanding independent people we are so used to dealing with, but with some absolutely craven, supine people who make no objections at all to whatever they have been told to do.
The Appeal Board is very serious because that is where the final appeal is made to allow the person to stay in the country. It would be much wiser if the Minister would accept that where a quorum of three only is present, only one of them should be a member of one of the two Departments represented on the Appeal Board.
Brevity is the soul of wit. I have occasionally been accused of being witty, never of being brief. I intend to break my record. This is the wittiest contribution I shall make today, because of its succinct nature. I second the amendment.
The number of members of the board was increased from three of five at the suggestion and prompting people like Senator Henry and Senator Norris. The board is required under section 15 (2) to be independent the exercise of its functions. The representatives from the Department of Justice and the Department of Foreign Affairs are there because of their special expertise in this area. Those who have dealt with either the Department of Justice or the Department of Foreign Affairs in recent times will acknowledge that they have had a very fair and sympathetic hearing from officials. Somebody spoke about political innocence earlier; to imagine that officials toe some ministerial line is a very innocent expectation. In my experience of dealing with officials, they are rather more determined to make Ministers toe their line than they are to toe any ministerial line; perhaps that is because I am not a very well behaved Minister.
More than 400 cases have been received this year. We are likely to have between 800 and 900 cases by the end of the year. If we are to process them all, I ask Senator Henry to reconsider the amendment on the grounds of practicality. She knows that on boards like this it will seldom if ever come down to an actual voting situation. Given that the board is to be chaired by an independently experienced legal person of ten years legal standing, I am sure that the board will arrive at its decision in a fully professional and independent way and that the rights of the asylum seeker will be fully protected. I ask the Senator to withdraw the amendment.
I do not want to withdraw the amendment. I understand the Minister's argument and I am quite sure she is right; the board will be independent. However, it would be horrific if we are to expect 100 or more appeals from 400 refugees. That would be an astonishing situation. I envisage a situation where appeals will be in double figures at the very most. If the figures are that high, the situation will be crazy and we will have got the legislation very wrong. Somehow I do not think that will be the case. My amendment makes absolutely sure that the whole situation is so clearly independent that no one can query it. In very serious situations people could query the board as it stands. The Minister has just said that some Ministers may not be quite as strong with their civil servants as others, that the civil servants make decisions about what is happening. I said when I spoke the last time that I hope the board would work by consensus. It would be regrettable if it has to vote to decide on many cases. I would very much like, for the sake of those coming before the board and for the board itself, if the two members appointed by Departments were seen to be part of the mix of the board and not part of a majority determining part of the board in no matter how small a number of cases.
Amendment, by leave, withdrawn.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I thank all those who were involved in the preparation and passage of this legislation, and in particular the Minister of State, who has had a pretty onerous time here and who dealt very courteously with Members. I wish to put on the record the appreciation of this side of the House for all the non-governmental agencies and associations who communicated with us, representatives of many of whom, including Amnesty International, attended here.
This progressive legislation will make a very valuable contribution to dealing with some of the humanitarian issues that arise for refugees when they arrive here and for people who are in difficulty in their own countries. I thank the Minister and her officials for their co-operation and advice and I also wish to put on record our appreciation of the many people who have been dealing with refugees for many years, in particular the immigration officers and officials in Shannon, the Irish Red Cross, the Civil Defence and many others who have been so helpful in dealing with these problems over a number of years. I hope this legislation will contribute towards resolving some of the problems we have encountered in the past.
I welcome the passage of the Bill and congratulate the Minister in bringing it before the Houses of the Oireachtas. I compliment her on her tenacity in staying with the Bill throughout the debate on all Stages in this House. There was a very full and open debate and people had a genuine interest in throughly examinating the Bill during its passage. The genesis of the Bill goes back to the Bill introduced by Deputy Shatter in the other House in 1993. I introduced a similar Bill in Private Members' time in the Seanad in November 1993. Unfortunately, it was not accepted, but now three years later we should welcome this Bill.
Internationally there are 19 million refugees, many of whom have suffered torture and persecution. We have not honoured our obligations heretofore in this area. Many of us who are interested in the issue have met refugees who have been in difficult circumstances in jails including prisons in Ireland.
I congratulate the Minister on introducing the Bill. It has taken us more than 40 years to honour our commitments under Article 14 of the UN Declaration on Human Rights, to which we are a party. The Bill is one of the most progressive anywhere in the world and it will set a headline for future examinations of refugee policy throughout the world.
I congratulate the Minister on this Bill. She stayed with it in a reasonable and good humoured way, even when it appeared at times that it might be filibustered. There was even a remote possibility that it may not have reached the Statute Book, but we are all very glad that it will.
I would have liked some more of our amendments to have been accepted; but they were not, even though we fought for them. However, in some other important areas the Minister listened to our arguments and incorporated the ideas into Government amendments. We are grateful to her for doing that. We are also grateful to her for making herself so accessible to those of us who had difficulties with the Bill. I extend our thanks to the civil servants who advised the Minister. They were courteous, helpful and patient in explaining points to people who are not versed in law but who took a reasonably intelligent interest in the proceedings.
This is a progressive Bill and, as Senator Neville said, it will set a headline. In the co-operation between the Minister, her advisers and ourselves, a good day's work has been done. I hope other countries will follow the civilised lead established by Ireland in this Bill.
I thank the Minister and her officials for their immense patience and fortitude in sticking with this difficult legislation. At times their patience was tried to the limit. This is an excellent piece of legislation, although there was a time when I thought it would not see the light of day at the rate we were going. I am immensely pleased to see that we now have a fine piece of legislation giving proper protection on a statutory basis to those seeking refugee status in this country. At the same time a proper balance has been struck in the interests and protection of the State.
I must sound one word of caution with regard to how this Bill was handled. I feel that a number of vested interests should have consulted equally with all involved on both sides of the House rather than picking a few people to whom they spoke on a regular basis. It seemed to me that, from section to section, people in the Public Gallery might as well have been sitting on the Opposition benches. That is something that I would not like to see being abused in future.
I congratulate the Minister on having steered the Bill though the House and for the courteous way in which she has argued so much of its contents with us. The Minister may have been lucky in that some Senators wore other Members out. I am still not sure about section 9 or what "to enter the State" means; nor have I discovered what other European countries prevent the publication of ongoing cases. I could have kept going with another few matters also if I had not been so worn out the other night. While the debate may have been long and detailed on Committee Stage, the Minister is lucky that it went the way it did in the end.
I am also delighted that the Minister gave credit to Deputy Geoghegan-Quinn for the work she did on the Bill when she was Minister for Justice. I hope the Minister and her officials will be pleased with the way in which the Bill has been modified. I am glad that the Minister tabled her own amendment regarding the Appeal Board, which was the most important item. I will be watching the commission carefully to see how the two civil servants from the Department of Justice and the Department of Foreign Affairs are getting on.
I join with my colleague and echo the remarks on all sides of the House in relation to the passage of this Bill. Unfortunately, due to other commitments I was unable to participate as fully and actively in its passage as I would have liked. Nonetheless, I was involved in the early stages when a number of Opposition amendments were drafted.
Because of the longevity of the Bill's passage and the praise being heaped on the Minister, which is quite legitimate, I also want to put on the record our appreciation of Senator Mulcahy, who took this Bill through the House line by line in the interests of democracy. While the outside message may have been one of confrontation between the Minister and her adversary, in the age old and time honoured tradition I have no doubt that both protagonists will have a drink in the bar when all this is over. Such is the way things should be and such is the way things are, I am glad to say.
Senator Daly and I were disappointed at the note of rancour in Senator Gallagher's contribution about outside agencies. I praise the commitment and integrity of those agencies in continuing to highlight issues which affect marginalised people who cannot speak for themselves.
The Public Gallery should not be abused.
The Senator had her chance and it was unfair to single them out. I do not wish to fall out with my friend and colleague, Senator Gallagher. It should be put on the record that her remarks are not shared by those of us on this side of the House. We take the contrary view; that if agencies involved in briefing all Members of this House and the Lower House in the context of the passage of this Bill, felt it necessary to——
That is my point. They did not brief all Members.
I am not sure whether what Senator Gallagher said about their briefing people on this side of the House is accurate or not. No doubt Senator Gallagher has not had the experience of being in Opposition but perhaps she will soon find out.
I hope not. I am quite happy on this side.
Acting Chairman
That is for another forum.
When one is in Opposition one does not have the full resources of the Government side. I am sure Senator Gallagher did not mean to cast any reflection on the integrity or motives of the voluntary agencies which were anxious to ensure that the Bill would be passed.
The Senator is misinterpreting my remarks. I felt they should have informed everybody equally.
I do not wish to labour the point. I hope Senator Gallagher will take these remarks in the spirit in which they have been made. Finally, I compliment the Minister of State for what has been a difficult piece of legislation. Because of the nature of the legislation it was charged with emotion and that does not always happen.
I thank all Senators who contributed to the Bill. Their contribution was very important. I particularly want to thank the officials in the Department of Justice for their work on the Bill, both in its preparation and here in the House. They were truly heroic. I am sorry that Senator Mulcahy is missing for the final stage of the voyage, the landing at port.
Unavoidably.
It was a long voyage at times. There were important contributions in the Seanad, particularly in relation to the Dublin Convention and the appeals. In addition, the expansion of the definition of refugees may serve to set down a marker for other states in relation to their application of the convention.
I also thank the officials of the Seanad for their courtesy. I hope the Bill will become law as quickly as possible. The Geneva Convention dates from 1951, so this legislation is somewhat overdue.
The Bill is based on an earlier Bill prepared by the former Minister, Deputy Geoghegan-Quinn. I changed its provisions substantially as a result of the initial debate. This shows that an extended debate has its uses, particularly when it is possible to examine legislation on Committee Stage, as happened with the earlier Bill, when the debate is not confrontational and speakers can make valuable contributions. I am pleased to see this legislation being passed and I thank everybody who contributed to it.
Question put and agreed to.
Acting Chairman
When is it proposed to sit again?
Tomorrow at 10.30 a.m.