Seanad Éireann debate -
Friday, 30 Jan 2004

Vol. 175 No. 6

Immigration Bill 2004: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

The Bill before the House aims to address matters arising from the High Court judgment of 22 January last in the case of Leontjava and Chang. The net effect of the judgment has been to cast serious doubt on the validity of all statutory provisions dealing with the control of entry to and stay in the State by non-nationals. There has been criticism of officers of the Department of Justice, Equality and Law Reform in the course of debate on this matter. I wish to put on the record that decisions on this Bill have been made by the Minister who accepts full political responsibility for them.

Before I go into detail on the legal and practical issues posed by the High Court judgment, I will set out for the information of Senators the nature of immigration and its relationship with the legal and constitutional systems of the State. I do this to help avoid in this debate some of the misconceptions which can, very understandably, permeate discussion of this and related subjects. A non-national has no right, as such, to be in or to come into the State. Permission to enter or to be in the jurisdiction is a privilege or concession bestowed on the non-national by the State. The primacy of the importance of the control of non-nationals entering the State has been universally recognised from earliest times. It is a valuable and essential tool and it is at the disposal of every sovereign state.

The two seminal High Court judgments in the Pok Sun Shum and Osheku cases, both reported in 1986, make it clear that the State has extensive obligations and duties as a matter of Executive power to control the entry and presence in the State of non-nationals in the interests of the common good. The Supreme Court has cited these authorities with approval in a long line of cases which culminated in last year's landmark decision in the case of L and O. This case concerned the residence of the non-national parents of Irish-born children. The court has also cited the Article 26 referral by the President of the Illegal Immigrants (Trafficking) Bill in 2001. In its Article 26 reference, the Supreme Court reiterated that the legal provisions in this area related to an inherent element of State sovereignty over national territory, long recognised in both domestic and international law. It is clear that the State's power to exercise immigration controls is not, in fact, a repressive, punitive or draconian power. I am sure such words will echo through today's debate. It is, in fact, a duty which falls on the Government in protection of Irish society which includes, of course, the many non-nationals who live and work here in accordance with our legal system.

The powers and functions of the Executive in immigration matters are generally exercised by or under the direction of the Minister for Justice, Equality and Law Reform on behalf of the Government. The Supreme Court has made it clear that immigration powers can be exercised by the Executive in the absence of legislation. However, the Legislature has chosen to legislate for procedures to govern the exercise of Executive power in immigration matters. The main provisions have, for a long time, been contained in the Aliens Act 1935 and the aliens orders made thereunder. In the 1999 case of Laurentiu, the Supreme Court found that the manner in which the Legislature had conferred on the Minister through the 1935 Act the power to make secondary legislation on deportations in the form of aliens orders was inconsistent with the Constitution. Consequently, the Oireachtas enacted the Immigration Act 1999 which, as well as framing the deportation process in the form of a primary statute, provided in section 2(1) that every order made before the passing of the Act under section 5 of the Aliens Act 1935 shall have statutory effect as if it were an Act of the Oireachtas. That is crucial. It was not an Act of the Oireachtas of Saorstát Éireann, it was an Act of this Oireachtas enacted in 1999 to confer statutory force on the orders in question. The aim of that provision was to remedy the flaw identified by the court in the Laurentiu case as a protection in the interests of the common good of the provisions of the aliens orders as they stood against attack on similar lines. The aliens orders have been the foundation and charter of the operation of our immigration control system since their adoption many decades ago.

Last week's High Court judgment related to the validity of the 1935 Act and the 1946 order. The court found there was no basis in the 1935 Act for the provision of the 1946 order which imposed a condition regarding duration of stay on a non-national's permission to enter the State. The court found that another aspect of the 1946 order which related to the power of an immigration officer or a Garda to ask non-nationals to produce identity documents was invalid. It also found that the protection the Oireachtas conferred through section 2 of the 1999 Act on the aliens orders was, itself, unconstitutional. It is evident that the practical effects of this judgment are very serious and far reaching. They go to the heart of the immigration control function as exercised in the State in respect of non-European Economic Area nationals. Once the High Court grants and perfects the declarations which it signalled in the judgment of Mr. Justice Finlay on 22 January, every aspect of the operation of immigration controls thought to be addressed by the 1946 aliens order will be without statutory basis or so open to challenge as to render the controls extremely difficult to operate. The State has inherent powers in this area, but they require perfection and clarification in some legislative detail. To date, that legislative detail has been provided through the machinery of the aliens order which is now open to challenge. Aspects of the machinery in question include the appointment of immigration officers, immigration controls on non-nationals entering or seeking to enter the State including refusal of leave to land, permission to remain in the State including conditions as to whether the non-national is permitted to work and as to duration of stay, Garda registration of non-nationals, powers to check non-nationals for evidence that they are permitted to remain in the State and power to charge non-nationals for breaches of their permission to remain or for illegal presence in the State and to arrest and detain for such offences.

It should be borne in mind that these implications are not for management of entry into the State. There are also practical implications for the many non-nationals in the State already. Over 128,000 non-nationals were in current registration with the Garda in 2003. These are persons who are in compliance with our immigration law and, presumably, anxious to remain so. The expectation of a non-national in compliance with immigration law, for example, is that when seeking a re-entry visa for return to the State after a trip back home, he or she can rely on valid documents to support his or her application. When seeking to become naturalised, he or she can show with those valid documents that the statutory conditions for naturalisation are met. That can no longer be the case if the law is invalid or has a cloud of invalidity hanging over it.

The judgment also has longer-term implications for the Oireachtas in that it appears to rule out the possibility of legislating by reference to a text not actually appearing in the Bill in question. This not only has serious implications for future legislation, it also casts doubt on the many instances in legislation already on the Statute Book where the Oireachtas has chosen to legislate by reference to texts which are not themselves set forth in the Acts in question. Legislation by reference to a statutory instrument or subordinate legislation is a familiar feature of the legislative landscape of this jurisdiction. Senators should be aware that the judgment has far reaching implications in contexts beyond that of the machinery under discussion today. The Minister is advised that there is a sound basis for appealing the High Court judgment to the Supreme Court. It is the Government's intention to do so. Realistically, it is unlikely that a decision will be reached by the Supreme Court in the very short term.

In the interim, the status of immigration law and, in particular, the power to exercise controls on the entry of non-nationals into the State and on their stay in the State would at best be in a state of uncertainty and in practical terms could well be unworkable. The remaining parts of the aliens order are vulnerable and open to challenge. The inroads made into statutory provisions mean the effect of the decision of the High Court is a serious diminution of the powers available to the Executive to fulfil its obligations to its citizens to control the entry of non-nationals to the State. Accordingly, it is necessary to introduce what is, in essence, an emergency measure to address issues arising from last week's judgment. I accept this is an emergency measure and I understand the reservations Senators have expressed about it this morning.

Dr. Henry

We were ready to debate the matter on Tuesday afternoon.

Mr. Norris

Exactly.

Dr. Henry

We would not have delayed the Dáil at all.

Mr. Norris

The civil servants who are running it are allowed to defeat democracy.

An Cathaoirleach

The Minister of State without interruption please.

Mr. Norris

It is shameful.

An Cathaoirleach

The Minister of State without interruption, please.

Mr. Norris

There is no political reason for this.

An Cathaoirleach

Senator Norris should allow the Minister of State to continue without interruption.

Mr. B. Lenihan

The very exercise of democracy in a sovereign State is a responsibility cast upon both Houses of the Oireachtas. These Houses have to exercise powers in the common good of the Irish people as well.

Mr. Norris

We are not being allowed to exercise them. We are not making the decision. The Leader of this House, with whom I am sure the Minister of State is familiar, made it clear to us yesterday——

An Cathaoirleach

Order, please. Allow the Minister of State to continue on the Immigration Bill.

Mr. Norris

——that it was not political direction, it came from elsewhere.

An Cathaoirleach

Order, please, Senator Norris.

Mr. B. Lenihan

As I indicated at the outset, the Minister for Justice, Equality and Law Reform, takes full political responsibility for the decision to proceed with this measure as he believes it is in the interests of the common good——

Mr. Norris

He does now.

An Cathaoirleach

Allow the Minister of State to proceed.

Mr. B. Lenihan

——of this sovereign State. There is no question of an agenda on the part of officials or officers in the Department of Justice, Equality and Law Reform.

Mr. Norris

Why does the Minister for Justice, Equality and Law Reform not give a reason to the House?

An Cathaoirleach

The Minister of State without interruption on the Bill.

Mr. B. Lenihan

It is necessary to take what is in essence an emergency measure to address the position arising from last week's judgment. The effect of the Bill before the House is to restate in primary statute, and with the minimum of necessary changes, the contents of the Aliens Order 1946 as it was presumed to be in effect up to the day of the High Court judgment. In order for this legislation to be effective in removing doubt as to the conditions on non-nationals' stay in the State and to ensure proper entry controls, it is essential that it be enacted with the minimum of delay.

The Bill covers the following areas of immigration law: The obligations on non-nationals to present themselves on arrival in the State to an immigration officer for leave to land; the power to and circumstances in which an immigration may refuse leave to land to a non-national; the power to attach conditions as to duration of stay and engagement in business, profession or employment to a permission to enter the State; the legal status of non-nationals present in the State depending on whether they have a current permission; the obligation on non-nationals to comply with registration requirements while in the State; the obligation on hotels and other accommodation providers to keep a register of all non-nationals staying on their premises; the obligation on every person landing in the State to have a valid passport or other equivalent documentation; the obligation for non-nationals in the State to have a valid passport or equivalent documentation and a registration certificate where they are registered under the Act; the power of arrest for offences under the Act; the power to designate classes of persons who require a visa or transit visa; and the power to set fees for registration certificates.

With the exception of the last element, every one of these elements has been part of Irish immigration law up to the present. The technique adopted in preparing the Bill has been to take what was thought up to the judgment to be the law as set out in the Aliens Orders and as effected by section 2 of the Immigration Act 1999, as if it were in a primary statute and to put it into the form of this Bill. Some elements have to be drawn from other sources in order to make the Bill an item of valid legislation. Some elements drawn from the Aliens Act 1935, but mainly from more modern statutes, are included in the measure. The opportunity is being taken to either modernise or delete altogether some of the more obviously anachronistic elements of the law as expressed in the 1946 order. Senators will be pleased to note the decision on the reference to disability at section 4(3)(c). Clearly, the manner in which Irish society viewed the concept of disability in 1946 was a far cry from how it is now viewed. It is proper that this modern view should be taken into account in preparing new legislation. I am pleased to advise Senators at this stage that a Government amendment has been prepared which will remove the reference to disability, which reference in any event does not capture the intention of the provision.

The intention of that provision is more appropriately found in the revised wording of the amendment. The Bill also avoids the use of the term "alien", which over the years has acquired science fiction connotations. Instead the neutral term "non-national" is adopted, as used and employed in the more recent immigration legislation of 1999 and 2003.

I do not propose to speak in detail on the content of the Bill, which is largely self-explanatory. There is one provision which I consider worthy of special mention. Section 5 sets forth in clear and simple terms the distinction between mere presence in the State and lawful presence in the State. Although we have had non-nationals in the State and have had statutes governing their presence in the State since its foundation, this is the first statutory expression of that distinction. I need not remind Senators that the Ireland of today is a far different place from the Ireland of 1946 when the Aliens Order was adopted. In recent cases the courts have been clear in their expression of the lawfulness of a non-national's presence in the State where that presence is in accordance with the terms of a permission given by or on behalf of the Minister, and this is what subsection (1) of the relevant section now states in statute law. The courts have been equally trenchant in their expressions of the obverse, namely that a non-national who is in the State otherwise than in accordance with the terms of a permission given by or on behalf of the Minister is for all purposes unlawfully in the State. This is stated in subsection (2).

The exceptions to these clear and forthright provisions are those non-nationals who are present in the State on foot of a right, as distinct from being here as a matter of privilege. They fall primarily into two categories. The first of these is covered at subsection (3), namely those who on foot of Ireland's international obligations under the Geneva Convention relating to the status of refugees have an entitlement to be in the State, either because their claims to be refugees are being examined or because they are refugees or the close relatives of refugees recognised as such by the State. The other main category comprises the nationals of other member states of the European Union or the European Economic Area who have treaty rights of free movement throughout the territories of the member states. Their rights are protected generally under this Bill by section 2(2).

I accept that what is before the House is an emergency measure. What is being restated in this Bill is what was thought to be the law up to the decision of the High Court last week. That was the law upon which the members of the Garda Síochána and others relied to ensure that proper immigration controls were maintained in the State. The Bill is not an attempt to meet the undertaking given in An Agreed Programme for Government to bring forward comprehensive legislation in the area of immigration and residence. That Bill is in the course of development to the extent that legislative priorities permit. The intention is that it will replace all of the legislation in this area with a comprehensive code. This code will provide a solid legislative framework within which the Government's executive functions in the development and implementation of fair and sensible immigration policies can be exercised in a manner which meets the needs of Irish society and respects the rights of individuals.

This Bill is not that measure, rather it is an emergency response to a situation that has arisen out of an unexpected High Court judgment. The responsibility of Government is to ensure that we as a community can continue to operate immigration controls in protection of the interests of society and of the individuals, whether Irish or non-national, who make up that society. That is the responsibility of the Legislature. I appreciate the various grounds and discretionary powers conferred on immigration officers will be discussed and debated in this House this morning. That an immigration officer has a particular power to refuse entry on a particular ground does not mean that ground is always exercised. Powers have to be provided in legislation of this character for the protection of the State and its people as a whole. It is the responsibility of the Government and the Legislature to make all efforts necessary to maintain and restore proper immigration controls and I therefore commend the Bill to the House.

Ms Terry

I welcome the Minister of State. I understand from his comments that he heard some of what was said earlier this morning in the House. The Opposition accepts that Second Stage of the Bill should be dealt with this morning. It is right and proper that the House has an open discussion on this issue but to push all Stages of this Bill through the House this morning is quite unacceptable. The Minister and the Minister of State need to know that dealing with legislation in this manner is shoddy and unacceptable. It does not do justice to the Bill or to the people we represent.

I had just arrived in the House this morning when I received copies of the response to this Bill from the Immigrant Council of Ireland, the Irish Council for Civil Liberties and the Irish Refugee Council. There are some very worthwhile amendments contained in this response, which the Opposition has not had the opportunity to propose. That opportunity would exist if the remaining Stages of the Bill were to be taken next week. I ask the Minister of State to advise the Government Members opposite to accept what this side of the House has said and delay this process until Tuesday. This would give the House adequate time——

An Cathaoirleach

The matter was decided on the Order of Business. The House has taken a decision.

Ms Terry

The Deputy Leader said he would provide for a break of 20 minutes after Second Stage. I assumed that this time was being provided to enable him to come to another decision.

An Cathaoirleach

It was discussed on the Order of Business. I ask the Senator to confine her remarks to the Bill before the House.

Ms Terry

Perhaps I misunderstood, but I thought the sos was being arranged to provide for a change of mind.

An Cathaoirleach

No.

Ms Terry

Obviously not.

An Cathaoirleach

There has been no change of mind.

Ms Terry

The Chair will see by our actions later that we treat this matter very seriously. The manner in which this is being dealt with is absolutely deplorable.

This Bill was introduced to remedy constitutional defects in existing law, as highlighted recently in the High Court case. The defects stem from section 2(1) of the Immigration Act 1999, which was brought forward by the Government when the current Minister, Deputy McDowell, was Attorney General. The 1999 Act was an attempt to confer retrospective validity on a series of regulations, the constitutionality of which had previously been questioned by the courts in the famous Laurentiu decision. The Government failed a second time to remedy the problem, to put it simply, when it attempted to fix the problem highlighted by the Laurentiu decision.

I have said already that the speed with which this Bill is being pursued is absolutely unacceptable. The Minister of State, Deputy Lenihan, and the Minister, Deputy McDowell, have said that this legislation will close the loopholes highlighted last week. It does much more than that, however, as it introduces measures above and beyond the provisions which were exposed last week. I take great exception to this Bill's provisions, which need to be dealt with in a proper fashion and with sufficient time being provided. I would like to highlight some of the Bill's provisions which are outside the scope of the High Court decision.

Section 4(3)(d) provides that a non-national can be refused admission to the State if he or she has been imprisoned for a year or more. If we examine this one-year provision, we will find that Mr. Nelson Mandela, for example, would not be allowed to come to this country again. This new provision relates to an area which was not highlighted by the High Court. What will happen to a non-national who comes from a country where one can be sentenced to five years in prison for stealing a bar of chocolate, for example? This ridiculous provision will prohibit many people from entering this country.

Section 9(4) seems to demand that Irish citizens act as immigration officers, just as the Minister wants to turn publicans into police officers. This section will mean that Irish people will have to report non-nationals staying in their houses if they think such non-nationals are illegal. It is absolutely incredible.

Section 10 states that hotel-keepers will have to maintain "a register in the prescribed form of all non-nationals staying at the premises". Will hotel-keepers be expected to ask guests whether they are non-nationals? Many people in this country do not look what may be termed "Irish". How is one supposed to determine whether a given person is a non-national? This provision will create great problems for hotel-keepers and for many others. Section 10 should be withdrawn.

I have not had time to read through the report I received this morning, which highlights a number of issues. It claims that section 4, which relates to the recognition of states in international law, will allow immigration officers to refuse leave to land to non-nationals who are in possession of a travel document from a Government which is not recognised by the Irish State. The section will have a negative impact on persons who originate from countries we do not recognise, such as Somalia and Tibet, and those from countries with which we do not have diplomatic relations, such as newly independent states.

Section 4(5)(d) requires non-nationals who wish to remain in the State for longer than a month to seek permission in writing from the Minister for Justice, Equality and Law Reform or an immigration officer acting on the Minister's behalf. Immigration officers can currently issue visas to non-nationals for up to three months, with an option of renewal. I intend to propose an amendment to this section, which represents a serious departure from previous practice and is unworkable. A provision requiring people to seek permission from the Minister if they wish to stay for longer than a month will not work. Given that it now takes longer than a month to get permission from the Minister, I do not understand how the Government can justify the inclusion of this measure. It is quite unworkable.

I would like more time to go through the representations I have received so that I can adequately address the issues raised by certain organisations. The Bill fails to set out any provisions governing family reunification for non-nationals. There are no provisions for persons in need of protection, but who fall outside the refugee convention. This legislation does not introduce procedures for non-nationals who are married to Irish citizens or long-time residents. I am also concerned about citizens, international students, permission for business persons and bridging periods for non-nationals who wish to re-establish themselves after losing work permits through no fault of their own, etc.

The report produced by the Immigrant Council of Ireland, the Irish Council for Civil Liberties and the Irish Refugee Council raises many issues which need to be considered but are not addressed in this Bill. We have not had time to put down amendments to address them. The legislation is flawed in many ways and should be rejected.

Mr. J. Walsh

I welcome the Minister of State and I also welcome the introduction of the Immigration Bill 2004. It is interesting that we are discussing a 2004 High Court decision about legislation enacted in 1935 and an Aliens Order of 1946. I compliment the Minister of State, Deputy Brian Lenihan, for comprehensively setting out the background to this legislation. He mentioned the effects of the court decision, such as the implications for non-nationals who are in this country at present. He outlined how he proposes to deal with the relevant issues. I intend to examine some aspects of his speech.

The Minister of State reminded us that the Supreme Court acknowledged in 1986 that the inherent element of State sovereignty over national territory has been recognised for a long time in domestic and international law. This sovereignty has been exercised and must continue to be exercised. The Minister of State's speech also made clear some of the major implications of the High Court decision in granting the declaration and in creating a legislative lacuna when it gives its judgment, which may well be today.

The provisions of this Bill will help us to exercise our sovereignty properly and to ensure this area is regulated. The legislation includes provisions relating to the appointment of immigration officers. The new immigration controls on non-nationals entering, or seeking to enter, the State will include the right to refuse leave to land. The rules of permission to remain in the State will include conditions relating to whether non-nationals are permitted to work and the duration of stay. The Bill provides for Garda registration of non-nationals. The Garda will be given the power to check non-nationals for evidence that they are permitted to remain in the State and to charge non-nationals for breaches of such permission to remain, or for illegal presence in the State. The Garda will have the power to arrest and detain for such offences. Anyone would agree it is incumbent on the State to provide for such powers. I noted with interest the Minister of State's comments regarding the implications for the approximately 128,000 non-nationals who are currently registered with the Garda Síochána and the effect it might have on their seeking to re-enter the country on a valid visa after visiting their homes. There may also be implications for these people if they seek to become naturalised in the State.

The legislation restates what was thought to be the law up to the date of the High Court decision. The Minister of State explained that the obligation for non-nationals to present themselves to an immigration officer on arrival in the State for leave to land is prescribed in the Bill, as are the power for an officer to refuse leave to land to a non-national and the circumstances under which he may do so; the power to attach to permission to enter the State conditions about the duration of the stay and engagement in business, profession or employment; the obligations for non-nationals to comply with registration requirements while in the State; and the power to extend permission to remain in the State and to attach or amend conditions to such permissions. Offences for breaches of immigration law are also created in the Bill, with powers of arrest. If we are to exercise our obligations in this regard — the State has obligations to all its citizens — the powers must be there to enable State agencies to give effect to these provisions.

By way of providing background, the general policy of the State with regard to asylum and immigration matters is worth restating. The State is committed to providing the application of fair procedures, in accordance with law, to all immigrants. Persons found to be in need of refugee protection will always be given protection in Ireland in accordance with our international obligations. In that regard, the programme for Government has included the need to increase the rate of repatriation for failed asylum applicants whose applications have been processed to finality in order to maintain the integrity of the policy. There was a considerable backlog in this area, but significant steps have been taken to expedite matters. The time in which asylum applications are processed has also been significantly improved. The programme for Government emphasises that this should be done within six months. That is fair to all sides, including the applicants. Their status can be determined and they can have clarity with regard to their application as early as possible.

While making representations to the Department of Justice, Equality and Law Reform about a number of applicants, I found that there is a need for greater transparency and more information to be forthcoming from the Department. I found in the Department a certain culture — to say there was a culture of secrecy might be too strong, but there was certainly a minimalist approach to giving information about representations. This should be investigated. In any aspect of the exercise of governmental powers it is important that there is transparency. The Department of Justice, Equality and Law Reform, perhaps because of its nature and traditions, seems not to be a strong proponent of that philosophy. Perhaps some changes are required. Some people have commented that there is no right of appeal, but there is. Any asylum seeker has provision to make application to the Refugee Appeals Tribunal. This should be recognised in debates in the House.

I have mentioned already the effects of the High Court decision. It would make totally inoperable any sensible immigration policy, which would result in a failure to exercise our power, which goes right to the heart of our sovereignty. That must be recognised. I feel strongly that we should ensure that proper procedures are followed and that the process is expedited for the benefit of the State and of applicants. That should be part of the overall operation of the system. We should be reminded of the comments of Kofi Annan, who said that we must manage the challenges of immigration and that it is a key issue for the European Union. It is not practical for any country to have an open-door policy, although some people advocate this without any foundation to their arguments. Apart from economic and other considerations, there are security implications. We need to have proper, effective controls at our frontier to ensure the safety of our society.

I have acknowledged that it is not good practice to rush legislation through in one day, although this did happen here a number of times in December and to my surprise, there were no objections. It is a practice in which we should not engage as a rule. However, sometimes there can be an emergency which necessitates this. The Minister said in his comments that he regards this as an emergency. We are giving the apparatus of State a legislative basis for exercising the controls which were in place up to the High Court decision. No significant changes have been made to practices which were in place and starting to operate effectively. Included in the Minister's speech was reference to the fact that comprehensive legislation is now being prepared within the Department which will replace prior legislation. I look forward to that and I am sure it will give this House and the other House a good opportunity to tease out the issues pertaining to legislation in this area and put it in a modern context.

Mr. O'Toole

I must state some things for the record. Nobody on this side of the House has objected to dealing with this legislation in an urgent manner. Nobody is saying there is no need for immigration legislation. We need a properly organised immigration policy. It drives me to distraction when people argue with us on the basis that we are trying to create some sort of open door policy. That is not what we are trying to do. We are trying to do the business of the Seanad. My only reason for staying here is to put on the record my views on this legislation, because I am ashamed to have any hand, act or part in what we are doing. Some of the provisions in this Bill will not stand the test of a week. The Government will be kicked around the place and the Taoiseach will be embarrassed in the first month of our European Union Presidency.

The attack on mental illness in this legislation goes beyond anything I have ever seen. People can say whatever they want about creating an Ellis Island — we may well be, but I do not have time to go into it. The Minister of State said in his speech that the elements of the Bill had all been dealt with previously. We have heard these weasel words before and we know what they mean. There are new provisions in the Bill which have never been seen before. I will deal with one in particular, to which the Minister did not refer in his speech. I will guarantee that whatever his advisers tell him, he will not deal with it in his response in a meaningful way. He will be ashamed.

I am not any better than the people on that side of the House and I have never presented myself as such. There are those on the Government side who have been nominated by organisations dealing with disability and mental illness. There are also those who know more about that area than I do, who are working in that area and who applauded the Special Olympics. They are now being forced by Government to walk through the lobbies in support of this regressive legislation during the Irish EU Presidency as we celebrate and honour the people who brought us the Special Olympics.

The Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, may not have had the time to read the original legislation. The Government proposal on mental illness means that people with "significant intellectual disability" can now be refused entry into the State. I would like the Minister of State to consider this point. We are now demanding that officers of the State and decent public servants discriminate and break the law of the land by refusing people entry on the grounds of significant intellectual disability.

I put it to the Minister of State that this is in breach of the law of the land. It is certainly in breach of human rights legislation and embarrasses us in a European and global context. It is unacceptable and wrong. I know the Minister of State is a legal person but I wager that this legislation will force officers of the State to break the law of the land. It asks them to make a judgment on a person suffering from significant intellectual disability. The House should adjourn to allow the Minister of State to read over this proposal. I will then listen to what he has to say afterwards. People can now be refused entry on the basis of significant intellectual disability. It is a crime in this country to discriminate on those grounds. Could the Minister of State's advisers let me have his attention?

It is a crime in this country to discriminate against a person on this basis even if the person is a non-national. This incorrect and objectionable proposal is part of this Bill. It means that a person with Down's syndrome, autism or Asperger's syndrome can be refused entry on the basis of this legislation. This is factual — I am not making it up — because such people come under the heading of significant intellectual disability. The Minister of State has informed the House that public servants will now be asked to discriminate in this area, which is utterly wrong.

The Government has had to introduce significant changes to section 4 in this perfect Bill produced by the Department of Justice, Equality and Law Reform only a couple of days ago. It did not even last a couple of days. This legislation is disgraceful and I do not want any hand, act or part in it. The Bill is illegal, discriminatory and asks officers of the State to break the law. I distance myself from this Bill. This is a day of shame, embarrassment and dismay for anyone who cares about equality of civil and human rights in this community. If this Bill had been introduced 50 years ago, it would have been described as naked fascism that people with disabilities were being refused their rights by a sovereign and democratic Government. It is more than I can stand for or live with. This Bill is rooted in an Aryan philosophy that would be worthy of Nazism at its worst. I choose my words wisely. I want people on all sides of the House to express that viewpoint.

The Bill states that the immigration officer can refuse permission to land to a non-national who suffers from a disability. The Minister of State described disability in his speech on the basis of the primary legislation. There are three sections in the primary legislation covering mental illness and severe dementia, which I will not even mention. This embarrasses all of us who have spoken about the need for understanding for people suffering with dementia. The legislation then refers to significant intellectual disability. My colleagues, Senators Norris and Henry, will say more on this.

Will the Minister of State be happy tonight knowing that he has introduced legislation that allows an immigration officer to refuse entry on the grounds of significant intellectual disability? This now allows immigration officers to inform people that they cannot enter the country because they or their children suffer from a disability. This is an appalling piece of work that breaks the law of the land. It will not withstand a test in the High Court. Of course, this is nothing new because we are accustomed to legislation from that Department not standing up in the courts.

If one checks the debates on the original legislation, now deemed unacceptable, one would see the speeches written for the Ministers and other speakers informing us we had nothing to worry about and were overreacting. This is unacceptable and shameful. It reflects badly on all Members, particularly on the Minister of State, Deputy Brian Lenihan. It also reflects badly on the Irish EU Presidency and the Government. Disability groups will be outraged by this proposal. However, I am sure they have not had the time to read it, no more than the rest of us. I ask the Minister of State to put this Bill to bed for the weekend, have real people examine it and revisit it next Tuesday to see what changes need to be made in order to deal with the needs of Government. This would not create such an outrageous situation as we have today. It is important that those people, who will be appalled and diminished by this Bill, know there are some voices who understand their position. Those voices are not only on this side of the House. I only wish those on the other side were allowed to speak on this issue.

Ms Tuffy

The Labour Party accepts the need for amending legislation in response to the recent High Court case. Contrary to the Minister of State's suggestion, the Labour Party accepts the need for immigration controls and has a comprehensive policy in this regard which has been welcomed by the Irish Refugee Council.

The Minister of State spoke about the background to this Bill. The recent High Court decision on immigration shows up an arrogant legislative provision adopted by the Fianna Fáil-Progressive Democrats Government in 1999. The reasoning for this was that it effectively gave ministerial orders statutory effect. This was despite the Supreme Court decision in 1999 in the case of Laurentiu v. the Minister for Justice, Equality and Law Reform that found orders, dealing with immigration matters that should be subject to statute, unconstitutional. The Immigration Act 1999 did what the Supreme Court had already decided was wrong, but in a slightly different way.

The Minister of State referred to the need for immigration controls in the interest of the common good. However, he ignores the fact that the common good is under attack in legislation that undermines the legislative powers of the Oireachtas as the Aliens Act 1935 and orders made thereunder showed. Now, it is similarly found that the Immigration Act does this too. The Labour Party warned in 1999 that the approach taken in the Immigration Act 1999 was problematic. Deputy Howlin, Labour Party spokesperson on justice, said in the Dáil:

The proposal to validate orders which are invalid in law is unacceptable to the Labour Party. The content of all aliens' orders which implement policy must be incorporated into the substantive provisions of the Bill. Section 2 is an unacceptable whitewash of illegality and deprives this House of the power to amend or review those provisions.

His comments were vindicated by the remarks of Ms Justice Finlay Geoghegan. She said there was nothing in the Constitution which authorised the Oireachtas to determine that secondary legislation, made by a person other than the Oireachtas, should henceforth be treated as the legal order of the State as if it were an Act of the Oireachtas. The only provisions which might be treated as a law as defined by the Constitution were laws made by the Oireachtas, such as provisions contained in a Bill passed by both Houses, signed by the President and promulgated into law.

The latest decision confirms there can be no short cuts in the legislative framework for immigration controls. The 1999 attempt to use orders as if they were statutes was found unconstitutional because it sought to bypass the normal parliamentary law-making process in favour of Executive control. The 1999 Act was an emergency measure, as is this Bill, and that is not the way to deal with immigration controls. The Government is dealing with this in the same way it did in 1999, acting in a panic to rush legislation through as an emergency measure when it should give that legislation much more consideration. The proper law-making powers of the Oireachtas should be brought into play, allowing for proper debate and for amendments to be put down in a considered way.

As Deputy Costello said, the Government is not learning from its mistakes in dealing with this matter. It needs to get this right and if one wants to get legislation right one does not rush it through without proper debate. If it was decided on Wednesday that it was unacceptable to take all Stages of the Bill in the Dáil at short notice, why is it acceptable to do so in the Seanad? That shows disregard and disrespect for the powers of the Seanad. Senators have mentioned problems with the legislation, as have outside interest groups, and those issues should be properly addressed. I will not go into them at this stage. The way business has been ordered today does not allow me to have effective input into this legislation.

Mr. Finucane

I do not want to rehearse what happened this morning but the Department of Justice, Equality and Law Reform should learn from the mistakes of the past. This Bill is being rushed through. Though one speaker said it is necessary to deal with the Bill today, if it is not going to the Dáil until Wednesday afternoon we could deal with it next Tuesday.

Taking the Bill today shows a lack of respect for Senator Terry and the other spokespersons on justice, as they have the right to consult organisations which are interested in the legislation. Those organisations are not being treated fairly either, and though they may not count for much with some people in the Department of Justice, Equality and Law Reform, they are reputable organisations. If we did not have bodies like the Immigrant Council of Ireland, the Irish Council for Civil Liberties and the Irish Refugee Council then legislation would be passed which would ride roughshod over people. That is why it is regrettable spokespersons have neither had the chance to consult those bodies nor a period of time in which to put down rational amendments. The Bill did not have to come to the House today.

The urgency with which the Bill is being treated here should be applied to more pertinent issues. In the past I have raised the way the Irish Prison Service is practically collapsing because of a dispute between the Minister and the Prison Officers' Association about overtime. There is overcrowding in prisons, prisoners from Spike Island are being transported to Dublin and there was a murder in prison in the last few days. That is an incredible state of affairs. The most recent murder before that was in 2000 but a prison is the last place one would expect a murder. It is a pity these issues are not addressed. Today's newspapers state that €30 million was spent on consultants' reports in the last 18 months, while the Minister is trying to save €30 million in the ongoing overtime battle.

Previous speakers have mentioned the issue of disability. The Minister of State should clarify this aspect of the Bill, as EU law specifies what is acceptable and what is not. He should be very careful because everyone was glad to jump on the Special Olympics last year and say they cared for people with intellectual disabilities, yet legislation like this creates doubt in this area. Senator Jim Walsh quoted Kofi Annan on Europe: "An open Europe will be a fairer, richer, stronger, younger Europe — provided you manage migration well," but Mr. Annan also said there could be a meaner, poorer, weaker and older Europe. It is worth considering the contribution made in the past six years by 300,000 people who came to the country from both within and outside the EU. It is the largest migrant movement in the EU outside Luxembourg, so there is a degree of acceptance about it.

I often sympathise with those who come to Ireland. They probably want a job but while their case is being processed I see them walking the streets of Limerick, day in, day out. When one looks at our past, Irish people were glad to be accepted in and contribute to the USA, Canada and other countries. We sometimes have a rather parsimonious and frugal approach to immigration.

The Minister of State always has a responsible approach when he comes to the House but there is an arrogance in the way the Bill has been introduced to the Seanad which shows a total lack of respect for the House. If the Government wants to ramrod this through today it will do so without us and, I am sure, without the rest of the Opposition. We will not participate beyond Second Stage. That is our protest.

Dr. Mansergh

I accept the principle that legislation is needed because of the High Court judgement and because it is important to maintain confidence in the fairness of our immigration regime. That is important for the cohesion and stability of our society as we do not want to have tensions which all of us would regard as undesirable. Ireland is changing rapidly and becoming more multicultural, with immigrants forming a more important part of our society. Leaving aside the asylum seeker question, there is clearly an economic need for immigration. I accept the Minister of State's statement that comprehensive legislation in this area is being prepared and, if I interpret him correctly, this is effectively a temporary stopgap measure until then. The urgency is clear.

My main purpose in speaking is to make some points about process. Yesterday, I stayed in the Oireachtas until after 7 p.m. and collected my mail on the way out. The Bill was not in my pigeon hole and I only received it this morning. I have not received the document referred to by Senator Terry. Most of us have not had proper time to study the possible ramifications, difficulties and pitfalls of the legislation.

That is particularly unsatisfactory when an order has been struck down by the High Court. There is a danger that the less time we spend discussing a measure, the more likely it is that it will be struck down by a court in the near or middle future and then we will have to go through the process again.

This is, by any standards, a sensitive area in which there is a good deal of public interest from all kinds of angles. Whatever one's particular view on the issues, whether our system is too liberal, not liberal enough or otherwise, it is important there is confidence in the legislation covering this area. The Government needs to pay attention even with emergency legislation — I accept it is that — to due process. I am not particularly happy there has been due process in the sense that we have not had proper time to study this legislation. If one is on the Government side, one essentially must take it pretty well on trust. It would have been beneficial to have had more time to look at the situation. I am a little surprised.

I heard the Minister of State say the Minister for Justice, Equality and Law Reform takes full responsibility for the legislation and for the manner in which it is being brought forward and passed. The Minister for Justice, Equality and Law Reform is a great parliamentarian, libertarian and so on. I do not like, and have never liked, authoritarianism in Government. I refer to the notion that because it was not possible to deal with this legislation in the Dáil, it can be just pushed quickly through the Seanad. The case for Committee Stage to be taken on Tuesday is, frankly, unanswerable.

Mr. Norris

Well said.

Dr. Mansergh

The decision has been taken in that regard but when these matters come up in the future, Ministers should pay more attention to proper process and to the fact that this affects the public's confidence in legislation. If the public sees legislation being rushed through the Houses, particularly legislation on important and sensitive areas, it can undermine confidence. I do not in the least dispute the need for urgency and speed in this regard, and I have not heard that disputed by either side of the House. This legislation was to have been completed this week but it will not be completed until the end of next week. It is a pity we were not able to use the time available to better advantage. While supporting the principle of the Bill, I cannot give a blanket endorsement to details which I have not yet had proper time to study. However, the message about process should be taken back to Ministers. It is important they pay attention to the Seanad and the Dáil and give Parliament reasonable time to consider important and urgent legislation such as this.

Mr. Norris

Hear, hear.

Dr. Henry

I congratulate Senator Mansergh on his wise words. We all know other members of Fianna Fáil are extremely worried about this Bill because they have told us. Will the Deputy Leader reconsider and allow us to take Committee Stage next week? Everyone has spoken of their concern about section 4 and the definition of "prescribed diseases and disability". Has anyone in the Department of Justice, Equality and Law Reform consulted members of the medical profession who are supposed to enforce this? When I saw the words "prescribed diseases", I thought it related to public health but when I tried to find out how those in public health felt about it, no one could tell me anything. As I said on the Order of Business, it was only this morning that I saw the emotive word "disability" had been removed but a far worse section has been included.

I wish to refer to what is being included as an amendment instead of "disability". Section 3(1)(a) defines “mental disorder” as meaning mental illness, severe dementia or significant intellectual disability where because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons. Members of the medical profession will have an ethical problem with this because their duty is first to the person before them and not to the Act.

Section 2(1) states that "mental illness" means a state of mind of a person which affects the person's thinking, perceiving, emotion or judgment and which seriously impairs these mental functions of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons and "severe dementia" means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension and memory and which includes severe psychiatric or behavioural problems such as physical aggression. That is a serious situation. "Significant intellectual disability" — we should remember the Special Olympics — means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of that person. We are excluding people who, as Senator O'Toole said, have Down's syndrome and autism. There is no need for the Minister of State to shake his head.

Mr. B. Lenihan

There must be the prospect of immediate and serious harm. That is very clear.

Dr. Henry

That is not true.

Mr. O'Toole

That is not true. On a point of order, I ask the Minister of State to correct that point. That is misleading the House.

Mr. B. Lenihan

It is not misleading the House.

Mr. O'Toole

Let us hear it.

Mr. B. Lenihan

The Senator should read the 2001 Act.

Mr. O'Toole

On a point of order, the legislation includes the words — we will not be misled on this — "the immigration officer may, if the officer is satisfied that the non-national suffers from a prescribed disease" or whatever the new word is. The definitions to which Senator Henry referred show that in one case, it goes on to state that. It does not cover the area of significant intellectual disability. Words are words and they are not what the Department of Justice, Equality and Law Reform says they mean. We are here because we believed the Department of Justice, Equality and Law Reform the last time.

Acting Chairman (Mr. Mooney)

On that point of order, which I allowed, the House should be aware that Second Stage does not lend itself to the detail of the Bill which is reserved for Committee Stage.

Mr. Norris

Committee Stage will be a farce.

Acting Chairman

Please allow me to state the convention. For the guidance of the House, I am indicating to it that Second Stage is about the general principles of the Bill and Committee Stage is about the detail of it but I accept the point of order and that there must be a certain latitude in exchanges across the House. I am pointing this out for the benefit of Members who will have the opportunity on Committee Stage to go into the detail of the Bill.

Mr. Norris

There will not be a Committee Stage.

Acting Chairman

I am sorry, Senator Henry, for taking up your time.

Dr. Henry

Acting Chairman, I hope you will give me injury time.

The worrying aspect of this legislation is that there is no right of appeal. If somebody makes up his or her mind that the person with Down's syndrome cannot come into the country, that is that. The Bill appears to override the refugee convention because it makes it an offence to have false papers. We all know that many people trying to claim asylum will come to this country with false papers because that is the only way they can get out of the country from which they came. This Bill overrides the provisions of the asylum code. This is extraordinary in a year when we have attempted to incorporate the European Convention on Human Rights into legislation.

There are terrible provisions in this Bill such as that whereby a non-national must prove from where they came. If someone says they come from Uzbekistan but somebody else says he or she comes from Tajikistan, the immigration officer must decide on it. One cannot prove that one came from Uzbekistan, since there is no one around to say that one was in the neighbourhood. What happens? Again, there is no right of appeal. Immigration officers also have the power to detain, and that is extremely serious. Examination is one matter, but detention is another. That is another very serious section. I wonder how many householders around the country who employ non-nationals know that they are to be responsible for ensuring that those non-nationals fulfil all their obligations. They will be liable to a fine of €3,000 if they fail to check up on them at all times.

Another seriously deficient area is that of registers in hostelries. There is no provision regarding who may have access to them or how long they will be maintained. Are they covered by the Data Protection Act 1988? These matters are most peculiar and do not seem to have been given any consideration. The Schedule allows for finger-printing, but it gives little indication as to who may have access to the records or, once again, how long they will be maintained. Surely that is also a very serious breach of human rights.

No one is against a register or having non-nationals comply with certain regulations, but we on this side of the House wish to ensure that human rights are maintained in this country. The former President, who is a former Member of this House and a former UN High Commissioner for Human Rights, Mary Robinson, keeps saying that it is a good idea for human rights to begin at home. We are not examining them carefully enough.

I wonder why the Minister does not simply introduce an order. It is pointless for us to waste our time here since none of our amendments will be accepted. As I said, some of the things the Government proposes to amend will make the situation even worse. I am delighted Senator Mansergh spoke as he did. Perhaps the Deputy Leader might give us the weekend to go through this properly and at least seek to remove the most objectionable provisions. A proper Committee Stage debate could be arranged for Tuesday afternoon. We have no intention of delaying the Lower House.

Mr. Norris

I will not rehearse the argument on the Order of Business, but a profound disservice has been done to democracy in Ireland by the Minister and his advisers. One of the most significant and courageous speeches that I have heard in the House was given today by Senator Mansergh. He represents the decent conscience of Fianna Fáil, and I honour him for it. He laid it on the line and said clearly that the argument for delaying Committee Stage is unanswerable, and so it is. It is shameful that we should be treated in this manner.

There is no question or doubt that my colleagues are right about the issue of significant mental disability. It is hypocritical of the Taoiseach, Deputy Bertie Ahern, to introduce this when we saw him posing with Down's syndrome children at the Special Olympics. Where has all that spirit gone? There are provisions about people causing damage to themselves or others. Autistic children are certainly in that category, as are victims of epilepsy. This is a bad and shameful day for democracy in this State, redeemed somewhat by Senator Mansergh who broke the silence on the other side of the House. It is clear that members of Fianna Fáil and the Progressive Democrats are embarrassed by this legislation, as they made clear when I spoke to them in the ante-chamber. It is a pity that they may not act on their concerns.

Like others, I have received some material from different briefing organisations — people professionally, directly and legally involved in the area. They say that they have had only two days to work on it and will have amendments for us by Monday. Unfortunately, that is of no use.

Much of the Bill simply re-enacts the provisions of the Aliens Order 1946. However, we ought to bear in mind that not only is that fairly antiquated legislation, it was enacted just after the Second World War and before the international bill of rights and the European Convention on Human Rights.

Compliance with human rights law simply cannot be taken for granted, since it has never been tested. It needs rigorous scrutiny, something the Bill deliberately avoids. For example, the ECHR requires that restrictions on fundamental rights, such as to privacy or correspondence, must be necessary in a democratic society, have a legitimate aim and be proportionate to the aim pursued. Can one say that of the requirement, which carries a criminal penalty for non-compliance, to declare all written materials? It is not even practical. Does it include shopping lists, telephone numbers, address books, newspapers and magazines? The penalties for non-compliance are fairly strong. Would it not be better to insert a proviso of reasonability, such as, "where reasonably suspected to be relevant to national security"? As worded, it will create a blanket or portmanteau situation.

It will come as a surprise to many people on both sides of the House who may employ non-nationals that, under section 8(4), an Irish person who has a non-national person staying can be imprisoned for up to a year or fined €3,000. Section 12 requires the production of identity documents on demand at any time. Where is the reasonability in that? Section 2(2) lists certain laws and instruments in the Bill from which one should not derogate. There is no mention whatever of Ireland's international human rights obligations and in particular the European Convention on Human Rights. Where is the reference to it in the Bill? It is worrying.

Amnesty International, in particular, has expressed its concern, not just at the original provisions, but at the Minister's clarification, issued to The Irish Times, that the phrase “mental disorder” also refers to profound mental disturbance such as psychopathic behaviour. I agree with the view of Amnesty International that this displays an inaccurate and outdated impression of mental illness.

There are no provisions for the victims of trafficking in the Bill. The Irish Refugee Council has grave reservations, feeling that it contains discriminatory and retrospective provisions in violation of international law which, if passed, would be detrimental to developing an effective managed immigration policy in Ireland. That is the view of those working at the coal face. They feel that the Bill ought to be withdrawn, with the Government introducing temporary emergency legislation in its place. I am sure that the Minister did not use that phrase in his speech. It was left to Senator Jim Walsh, who, acting on a hint suggested this.

Mr. J. Walsh

What did I suggest?

Mr. Norris

The Senator picked up on the trend of the debate. I do not accuse him of anything dishonest but merely point out that he was the person who introduced this idea. I wish he were right and that it were temporary emergency legislation. It is far more radical than that, however.

There are no independent internal appeals mechanisms. There ought also to be an independent monitoring presence at points of entry. We have all agreed that this area is very sensitive. Where is the training for officials? Are there any provisions for training people to deal with this situation? There is none that I can see. There is no requirement even that people should be questioned in a language that they understand; it is as stupid as that.

The joint submission says that this Bill should be withdrawn, since it would, for the first time, criminalise Irish citizens for failing to comply with immigration requirements. I am sure the Minister has this briefing document. I was asked for copies of it by the Government side, and I happily gave it to them. That is the nonsense of this. Learned views and judgments have been given in the British courts, none of which have been taken into consideration in preparing the Bill.

I will take up a point referred to by Senator Terry. The people, if not the Government, of this country are committed to supporting the people of Tibet in their distress. This is one of the countries that will be a victim of the Government's recent fudging of this issue. These unfortunate people who are already trampled upon by the Chinese will also have to deal with this situation.

The retrospective application of the law is not in accordance with the provisions of our Constitution. I will take no further part in this disgraceful debate. I now withdraw from the House and will only return to it if, as I hope, there is a general vote against the Bill in total. I withdraw in protest and disgust.

Mr. Morrissey

I know many non-nationals as I employ some and have done for many years. They play an important part in the socio-economic life of this country and will be required to continue to do so in future. I also know immigration officers, as I am sure do other Senators. From personal experience I know of abuses that have taken place in regard to immigration over the past decade and I am aware of people's concerns in this regard.

We are here today because a court has found that a member of the Garda cannot ask a non-national to see his or her passport. A sovereign state has a duty to protect its borders. The court's decision effectively means that this State has no borders and I wish to see this rectified. We have a right to look at this measure under the heading of emergency legislation.

I am concerned by some aspects of the legislation raised by Senators on the Opposition benches, in particular, those raised by Senator O'Toole. He used emotive and strong language in referring to the powers of detention and refusal on the grounds of mental disorder. I seek clarification on this point from the Minister of State. I would be surprised if Senator O'Toole's understanding is that intended by the legislation.

I am sympathetic to the plight of non-nationals coming to this country. I am also delighted that it is intended to keep a register of non-nationals. Abuses are occurring, whether the media is prepared to publicise them. In some cases, non-nationals come here and avail of rented accommodation, but go back to their country of origin and rent out the accommodation the State has provided for them. We must ensure that such abuses do not continue.

Mr. O'Toole

We are agreed on that point.

Mr. Morrissey

They have to be rectified.

Mr. O'Toole

That is not the issue.

Mr. Morrissey

That may mean having a register that is open to inspection, be it by local authorities or the Department of Justice, Equality and Law Reform.

Mr. O'Toole

That is a valid point.

Mr. Morrissey

We can examine the finer points of this kind of measure, such as whether it is affected by the Data Protection Act.

The situation resulting from the court's ruling is laughable. It means that we are, effectively, a sovereign State without borders. As legislators it is our responsibility to ensure we protect our borders. I agree with most of the Bill's provisions. I hope the Minister of State will clarify, in particular, the comments of Senator O'Toole which, if valid, raise serious questions, especially in regard to the competency of immigration officers, who are primarily gardaí, to detain or refuse entry on the basis of mental instability or otherwise.

Mr. Dardis

I welcome the Minister of State, Deputy Brian Lenihan. I wish to be brief, but a couple of important issues arise. In his introductory speech, the Minister of State referred to the State's responsibility and duty of care to its citizens. Citizens have rights non-citizens do not share, which is as it should be. The State has a duty to protect itself and its citizens. The question then arises as to how it can do this effectively.

It is indisputable that legislation must be brought forward to deal with the lacuna created by the High Court decision. There is also an urgency about this matter because, in the absence of the legislation, there is potential for serious abuse to occur with regard to non-nationals entering the State.

As the explanatory memorandum states, the changes are minimal. However, I was appalled when I read the reference to disability in section 4(3)(c). If I have stood for anything since I became a Member of the House, it is the rights of people with disability. I hope I have made some small contribution to the advances that have occurred in the past 14 years.

I could not have supported the Bill if the word "disability" had remained in the Bill as circulated to us. However, I accept there are situations where people may present in a violent and disturbed state and discretion needs to be given to officers at ports and airports to deal with this. The Government amendment, which was quite rightly brought forward, deals with this. This right is restrictive and will be used with the proper discretion. If somebody who was deeply disturbed entered the State and committed a murder, the Government would be rightly held accountable in that situation. There would be a furore about it. There must be balance and what has emerged by way of Government amendment achieves this.

Mr. O'Toole

It covers everybody with epilepsy, autism and other illnesses.

Mr. Dardis

As I believe a reasonable balance exists, I support the Bill.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan)

The Aliens Order 1946 was the foundation for practice in this area, one which is fundamental to any sovereign state. There is nothing new in the legislation, other than on the question of fees, where I accept a new element has been introduced into the equation. This is why the measure has been brought before the House. It contains nothing that was not in the foundation of our practice in this area.

I do not wish to go over the same ground again, but as a point of departure Senator Finucane suggested that our attitude to immigration was parsimonious. As I said, in introducing the measure to the House, the number of non-European Economic Area nationals legally resident in the State for more than three months registered with the Garda Síochána last year was 128,000. In 1999, the figure was 29,000. In the year 2000, the figure was 47,000. In 2001, it was 90,000 and in 2002 it was 93,000. That is not——

Dr. Henry

The ESRI is encouraging us to allow more people to come here.

Mr. B. Lenihan

With respect, Senator, that does not indicate a parsimonious approach.

An Cathaoirleach

Allow the Minister of State to continue, without interruption, please.

Mr. B. Lenihan

I am proud of this record. As a Minister and Deputy I work for the integration of these communities into Irish life. The question of our attitude to immigration in this country is an entirely distinct issue from the matters that arise within the province of the Bill. To maintain confidence among the public when we have immigration on that scale, it is all the more important that——

Ms Terry

Are they people with work permits or asylum seekers?

An Cathaoirleach

Order, please.

Mr. B. Lenihan

——we have essential legal safeguards in place to ensure any immigration system favours those who wish to work here, comply with our laws and become citizens, not those who do not so wish.

Some 40,000 work permits were issued or renewed last year. The record of the Government and its predecessor in this matter is not one of parsimony and is not characterised by parsimony. We live in a time of great change in this country and we must work together in that context. I will draw the attention of the Minister to Senator Mansergh's understandable concern on a constitutional point, namely, that process has not been observed in the examination of the detail of this legislation. The only comfort I can give is to repeat that there is nothing in the legislation, apart from the question of fees, which goes beyond the 1946 order.

Senators O'Toole and Morrissey raised the question of disability. It is proposed to delete the reference to disability in the Bill as initiated and an amendment has been tabled. A substitution is proposed by reference to the Mental Health Act 2001. Before I deal with the precise character of this substitution, I will return to the 1946 order. I told the House that the 1946 order is not being added to by this legislation. The equivalent provision in the Aliens Order 1946, signed by the then Minister, Gerald Boland, is contained in the Fifth Schedule:

(1) Diseases subject to the International Health Regulations for the time being adopted by the World Health Assembly of the World Health Organisation;

(2) Tuberculosis of the respiratory system in an active state or showing a tendency to develop;

(3) Syphilis;

(4) Other infectious or contagious parasitic diseases in respect of which special provisions are in operation to prevent the spread of such diseases from abroad;

(5) Drug addiction;

(6) Profound mental disturbance; manifest conditions of psychotic disturbance with agitation, delirium, hallucinations or confusion.

Mr. O'Toole

Does the Minister of State know that it was 40 or 50 years before other legislation was brought in on human rights?

Mr. B. Lenihan

This Schedule was inserted by the 1975 amendment.

Mr. O'Toole

That would not be acceptable nowadays.

Mr. B. Lenihan

I want to correct myself as, having read from a consolidated copy of the measure, I referred to the international organisation.

These were the 1975 provisions. Nothing is being added to in this legislation. If anything, the reference to the 2001 Act is a subtraction from what is in the 1975 amendment. I want to deal specifically with the issue raised by Senator O'Toole.

Mr. O'Toole

Section 3(1)(a) of the Mental Health Act 2001 applies to almost every illness I mentioned.

Mr. B. Lenihan

Instead of referring to disability, under section 3(1)(a) a mental disorder “means a mental illness, severe dementia or significant intellectual disability where [that is the key noun] because of the illness, disability or dementia there is a serious likelihood of the person concerned causing immediate and serious harm to himself, herself, or other persons”.

Mr. O'Toole

Does that not apply to every single autistic person? The Minister of State should have the honesty to answer.

Mr. B. Lenihan

There has to be a prospect of immediate and serious harm. This is the kernel of what is proposed to be inserted in the legislation.

Senator O'Toole made extensive reference to section 3(2) of the Mental Health Act. This provides a greater clarification of the precise definition of mental disorder. This subsection simply states "In subsection (1)" and is only by way of clarification.

Mr. O'Toole

I am not arguing about that. Section 3(1)(a) applies to a whole series of illnesses, a list of which I can give the Minister of State.

An Cathaoirleach

Questions cannot be posed to the Minister of State when he is replying to the Second Stage debate.

Mr. O'Toole

I have worked in this area for 20 years and the Minister of State's colleagues will tell him this too.

Mr. B. Lenihan

I have to accept the Cathaoirleach's ruling. However, this was a point of substance raised by Senator O'Toole.

An Cathaoirleach

The Minister of State is replying to Second Stage and I do not want him to be interrupted.

Mr. B. Lenihan

Section 3 (1)(a) is the kernel of the amendment proposed in substitution of the reference on disability. Inserting it in this context predicates the power of the officer making the determination on the prospect of a person causing immediate and serious harm to himself or herself. One must remember that the legislation enables medical inspectors to be appointed. Any State must have power to deal with such a person at the point of arrival.

Mr. O'Toole

Does this not apply to every autistic person?

Mr. B. Lenihan

That is all the Government is proposing. We can argue about to whom it might or might not apply.

Mr. O'Toole

The Minister of State is avoiding the question. This issue is as clear as day; let us go through the different categories.

Mr. B. Lenihan

I am not avoiding the question. Senators must consider the context in which this power is being conferred.

Mr. O'Toole

The Minister of State can talk until midnight but it will not change it.

Mr. B. Lenihan

The context is that of an immigration officer, or a medical inspector, examining a person where there is the prospect of that person causing immediate and serious harm to himself or herself. We can return to this issue on Committee Stage.

Senator Morrissey asked how an immigration officer could police such a section. The legislation expressly provides for the appointment of medical inspectors. It is difficult to see how a determination by an immigration officer on a matter such as this could withstand any challenge in the courts. The legislation provides that medical inspectors with competence or skill in the area can make such judgments as required.

Senator Norris referred to a number of issues. He referred to a document jointly submitted to Opposition Senators by the Irish Refugee Council, the Irish Council for Civil Liberties, and the Immigrant Council of Ireland. The submission was not furnished to the Minister or Government Senators and I thank an unidentified Opposition Senator from whom I have been able to obtain a copy. I was disturbed by one part of the submission. The Minister for Justice, Equality and Law Reform, with the consent of the Minister for Health and Children, can appoint medical inspectors with powers to examine persons believed to be non-nationals. The submission refers to this unexceptionable power. The submission contends that the section implies the use of racial profiling, where non-nationals, because of their race, colour or dissent may be singled out for examination. It then refers to a decision of the British House of Lords. It is a terrible slur on the Government to suggest that a section providing for the appointment of medical officers is racist or connotes a use of racial profiling by the Department. There is no such intention behind this legislation. A sovereign state is perfectly entitled to provide for reliance on medical advice in making determinations in a matter of this kind. While I accept that the organisations concerned have had a short time to prepare their submission, I was surprised to see this in it. There is nothing in the legislation to suggest that the provision for medical inspectors is for the purpose of introducing a form of racial profiling and I dislike that insinuation.

A number of the other points canvassed would be better dealt with on Committee Stage. The question of documentation was referred to and Senator Norris specifically referred to Tibet. Again, there is a misapprehension about the power being conferred upon the immigration officer. Section 4(3)(g) provides “that the non-national is not in possession of a valid passport or other equivalent document, issued by or on behalf of an authority recognised by the Government, which establishes his or her identity and nationality”. It is not a question of what states the Government recognises; it is a question of a person arriving in this State without any documents. Clearly, immigration officers must have, and have always had, powers to deal with such matters. Senator Morrissey postulated this point. The High Court decision has effectively said that such documents can no longer be sought. They can be sought. The operation of these powers is subject to any refugee claim that might be made. It is easy to envisage how someone who is fortunate enough to leave Tibet and arrive in Ireland might wish to make such a claim. While such a claim can be made, we must invest our immigration officers with the primary power of being able to request this documentation and act upon it.

Senator Terry suggested the Bill will criminalise Irish citizens who wish to enter the State in breach of immigration controls or, for example, failed to maintain hotel registers. The duties the Bill imposes on Irish citizens are the same as those that have operated since 1946. In fact, the duties now imposed on hotel-keepers are less onerous than those in the 1946 order. At present, all persons should be entered in hotel registers, but the new provision applies only to non-national guests. That is an example of where there is a relaxation of what is provided for in the 1946 order.

Senators Terry and Norris also said that the Bill would, for the first time, criminalise Irish citizens for failing to be in possession of a passport when arriving from outside the common travel area. This is an existing provision in Article 14 of the Aliens Order. Senator Terry queried whether the provision for reporting to an immigration officer within one month applied to non-nationals coming across the Border from Northern Ireland. There are no immigration controls on the Border. Hence, under the provision, in the case of non-nationals they are not required to report immediately but must do so within one month. That is the current position.

I have tried to deal with the various points raised by Senators in the course of their contributions. The great majority of them are more appropriate to Committee Stage but I was anxious to put those matters on the record of the House. I would like to remind Senators that there is nothing in the Bill that goes beyond what has been there since 1946. It is essential that our immigration officers have these powers and continue to exercise them. The Minister has stated — and it is part of the Programme for Government — that comprehensive legislation will be introduced regulating this area. I accept that it is both urgent and important. In the interim, however, it is essential for us to have a solid, workable body of legislation in place. Given the judgment of the High Court, it cannot be left on the basis of subordinate legislation but must be put in the form of primary legislation. Care has been taken to ensure that what is in this primary legislation reflects what was understood to be the practice before the High Court judgment.

Dr. Henry

On a point of information, I did ask whether the Minister of State or the Minister for Justice, Equality and Law Reform had discussed this situation with colleagues of mine in the psychiatric profession. If they refuse admission to a very dangerous person, who then kills someone on an aeroplane, who will accept legal liability — the doctor who refused the entry?

An Cathaoirleach

The Minister of State has concluded on Second Stage.

Mr. O'Toole

It is just another unanswered question.

Dr. Henry

Does the Minister of State know if psychiatrists were consulted? I am aware that the public health doctors were not consulted.

Mr. B. Lenihan

There have been no consultations on the matter since 1946.

Mr. O'Toole

The Department was busy in the meantime.

An Cathaoirleach

We cannot have that discussion now. The Minister of State has concluded his reply.

Mr. O'Toole

The Government Members can have the whole lot to themselves, as far as I am concerned.

Question put.

An Cathaoirleach

As no tellers were nominated by the Senators who called for a division, the division cannot proceed.

Question declared carried.

An Cathaoirleach

When is it proposed to take Committee Stage?

Mr. Dardis

Now.