Immigration Bill 2004 [Seanad Bill amended by the Dáil]: Report and Final Stages.

This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister of State may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For the convenience of Senators, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated a list of the proposed groupings. Senators may speak only once on each group. I remind Senators that the only matters that may be discussed are the amendments made by the Dáil. I call the Minister of State to speak on the first group of amendments.

Question proposed: "That the Bill be received for final consideration."

The amendments in the first group are amendments Nos. 1, 4, 5, 7, 10 to 15, inclusive, 17, 18 and 21 to 25, inclusive. Some of these amendments, which are primarily drafting amendments, were proposed by Opposition Deputies and accepted by the Minister in the Dáil. I will be happy to respond to any points Senators would like to raise in this regard.

May we speak generally on the Bill at any point?

No. Senators may speak only on the group of Dáil amendments before the House.

We cannot address the subject of the Bill in general terms.

I have made it clear that the only matters before the House are the changes made in the Dáil. The Senator is welcome to speak on them.

I want to address the Bill, as presented to us by the Dáil. I expect that it will be passed in that form, even though I oppose it. I deserve to speak about the Bill and I should be entitled to do so.

On a point of order, will it be possible later to speak on the question "That the Bill do now pass"?

We can make general points at that stage.

I thank Senator Dardis.

I call the Minister of State to discuss the second group of amendments.

This group of amendments comprises amendments Nos. 2, 9, 16 and 26. It addresses an issue which generated a considerable amount of debate in the Seanad when it last considered this Bill. It is now proposed to take a technically different approach to the question of a health-related basis for refusing leave to land. Amendment No. 26 provided for a new Schedule to the Bill. In the intervening period since the time the Bill was last before the House, the opportunity has been taken to reflect again on the best approach to this question. I trust Senators will agree that the outcome is a rational solution.

To place this in its historical perspective, the Aliens Order 1946 sets out health criteria for the refusal of leave to land which include references such as "lunatic", "idiot" and "mentally deficient" — terminology that now sounds horribly stigmatising and is thoroughly unacceptable. In 1972, following our accession to the EEC, provisions in respect of our obligations regarding free movement of persons and regulations were duly made under the European Communities Act 1972. In 1975 an amending Aliens Order made extensive changes to the 1946 order, including the adaptation of some provisions relating to the free movement of persons regime for general application. The old and now offensive-sounding provision was replaced with one that drew on the annex to Council Directive 64/221/EEC, which deals with limitations on the right to free movement between member states.

The effect was to insert into the Aliens Order a new schedule of what were described asdiseases and disabilities, reflecting theterminology of the directive and mirroringprecisely the list of conditions set out in the annex to that directive. The directive, made in 1964, is still in effect. Thus, since 1975 there has been a uniform basis for determining if, on health grounds, a non-national should be admitted to the State, whether that person is a national of an EU state or otherwise. The simplest and fairest option is to have the same criteria for both. That is the combined effect of Governmentamendments Nos. 9 and 26. They also do so in a manner that does not use inappropriate terminology.

Arguments have been made in some quarters, including in the other House, that there should be no optional power for an immigration officer to refuse a person on health grounds where that is appropriate. However, refusal on health grounds has in the past been rarely employed and I see no reason for any great change in that pattern in the future. We cannot have a situation where, were there to be an outbreak of a disease identified by the World Health Organisation as a danger to the public, immigration officers could not keep this disease out of Ireland. We would be failing in our duty to society if we were to go down that road. It would not be in the public interest to leave Ireland, alone among countries in the world, defenceless against such an outbreak. Nor do I think it is wise for us to have a more restrictive regime in place curtailing the free movement of EEA nationals, who have rights backed up by the treaties, than is the case for non-EEA nationals, whose position is that of a person seeking a concession rather than asserting a right. These amendments represent the fairest and simplest option.

As the Minister of State knows, I objected to this part of the Bill from the start. This is not because I want him or the Minister for Justice, Equality and Law Reform to fail in their duty to the State. There is a public health issue involved. All countries must be in a position to close their borders to certain people whom they think may be carrying a communicable disease which could result in a serious public health problem. However, we should try to bring these regulations in line with what is currently considered best practice in medicine. While it is commendable that we have got rid of the language in the Aliens Order, it would be a good idea to try to ensure we are right up to date with medical teaching on these issues.

In general, if there is a communicable disease in some part of the world which is causing great worry about its spread to this country — which can be rapid, thanks to international air transport — best practice is usually to decide that nobody from that country can come here until the outbreak is under control. If there is an outbreak of smallpox in Outer Mongolia, nobody from Outer Mongolia will be allowed into Ireland until the outbreak is under control and Irish people are advised that if they go to Outer Mongolia they will have a great deal of difficulty in returning. None of the changes that have been made to the First Schedule of the Bill address the issue this way. For example, the First Schedule refers to "diseases subject to International Health Regulations for the time being adopted by the World Health Assembly of the World Health Organisation". These diseases are plague, cholera and yellow fever. Whatever about plague and cholera, yellow fever is most unlikely to become a problem in Ireland because there is no suitable vector to spread the disease. The international health regulations are currently being assessed by the WHO in terms of being updated and will be reported on in 2005. We are introducing legislation that is of little practical use to us.

The next disease referred to is "tuberculosis of the respiratory system in an active state or showing a tendency to develop". I do not know how, without an X-ray, somebody can diagnose this at ports or airports. The Minister of State will say that it happens rarely. However, why put such a provision into the legislation when it is internationally recognised as being of little value? In this week'sBritish Medical Journal, there is an article from a professor at the London School of Hygiene and Tropical Medicine on this topic. The article states that one cannot rely on the fact that one will exclude people if one specifically pinpoints countries with a high incidence of tuberculosis. This is a complex problem. I understand from the Minister's speech in the Dáil that he is relying on a person to give medical details — which should be confidential — over the telephone to him that an individual travelling to Ireland has tuberculosis. The person should be stopped at the port of origin. The chance of spreading the disease on the aeroplane is much more likely than when the person gets to this country. It is a dereliction of duty to the Irish people if one waits till the person has landed.

The next disease is syphilis. The Minister for Justice, Equality and Law Reform made a chivalrous and gracious speech in the Dáil about how he wanted to protect Irish women from being infected by promiscuous carriers. He said:

The carrier of such a condition could be somebody one would not want to come to Ireland because of his irresponsible attitude and the fact that he had infected five, ten or 15 women in a particular place.

However, the latest information on syphilis in this country was published on 14 January 2004 inMedicine Weekly. It was a synopsis of the National Disease Surveillance Centre's report on syphilis in this country. The article pointed out that between January 2000 and December 2001, 595 new cases of syphilis in this country were notified to the centre. More than three quarters were male and 60% were men who had sex with men. One fifth of those had contracted the disease abroad. These were Irish nationals bringing the disease in from London, Manchester and Amsterdam where there were epidemics of the disease. I wonder how helpful it will be to the nation to be screening non-nationals for this disease at the point of entry. It seems that this is being written into the legislation for the sake of it. The association between syphilis and HIV infection is well-known, but it is left out. It seems to be on the same level as the infectious and contagious parasitic diseases, in respect of which special provisions are in operation to prevent their spread from abroad. What are the special provisions? The most likely disease is giardia and I do not know if there are any special provisions relating to it. I cannot help but wonder if the Minister took any advice from the Department of Health and Children or the National Disease Surveillance Centre.

In the Dáil, the Minister spoke about SARS, which caused a great deal of trouble last year when we nearly had to bar people coming to the Special Olympics. Personally, I was glad they were all able to attend. He said:

Likewise in cases of communicable diseases, such as SARS and other types of conditions, if the situation arises that we have to deal with these types of infections, somebody will have to make decisions and the Bill provides for medical inspectors to be appointed in addition to back up the immigration officers in certain cases. I am very clear in my mind that it is responsible to provide protection of this kind and it would be irresponsible to tear it down in a hallucinatory moment [which comes into the last bit of the Schedule] in Parliament in the belief that by doing so we were being somehow compassionate. There is nothing compassionate about exposing people to SARS if one can avoid it.

What the Minister is doing is in contradiction of what the National Disease Surveillance Centre has suggested if there is a problem with SARS entering the country. Although the Bill does not specify, I presume the medical officer will be a public health medical practitioner. Currently, there is an outcry over the lack of 24 hour cover by public health specialists. These are the very people who would be expected to assist theimmigration officer. The Minister for Health and Children is attempting to establish an all-European body to look at these issues in a much more comprehensive way. The public health doctors have said that they welcome the EU Commissioner for Health and Consumer Protection, Mr. David Byrne's advocacy that each member state should have a 24 hour, seven day a week cover for threats from infectious diseases. It is extraordinary that this legislation requires such cover, yet we do not have it. It strikes me as being half mad.

The Minister for Justice, Equality and Law Reform proposes that an immigration officer will have the back-up of a public health medical officer, if he can get one. However, the following are the guidelines outlined in the interim guidance for aircraft cabin staff on management of suspected severe acute respiratory syndrome:

In-flight care of suspected case of SARS: If a passenger on a flight from an affected area becomes noticeably ill with a fever and respiratory symptoms, the following action is recommended for cabin crew:

1. The passenger should be, as far as possible, isolated from other passengers and crew.

2. The passenger should be asked to wear a protective (surgical) mask and those caring for the ill passenger should follow the infection control measures recommended for cases of SARS.

3. A toilet should be identified and made available for the exclusive use of the ill passenger.

4. The captain should radio ahead to the airport of destination so that the local director of public health can be alerted to the arrival of a suspected case of SARS.

5. On arrival, the ill passenger should be placed in isolation and medically assessed.

The guidelines continue on the management of contact with the ill passenger:

If the immediate medical assessment of the ill passenger excludes SARS as a possible cause of his or her illness, the passenger should be referred to local health care facilities for any necessary follow up. If however, the initial medical assessment conducted in the airport concludes that the passenger is a suspect or probable case of SARS the following action should be taken:

1. All contacts of the ill passenger should have already been identified during the flight. For the purposes of air travel a contact is defined as:

Passengers sitting in the same seat row or within at least 2 rows in front or behind the ill passenger.

All flight attendants on board.

Anyone having intimate contact, providing care or otherwise having contact with respiratory secretions of the ill passenger.

Anyone on the flight living in the same household as the ill passenger.

If it is a flight attendant who is considered to be a suspect or probable SARS case all the passengers are considered to be contacts.

The guidelines continue to give more information as to what cabin staff should do about other passengers. However, the Minister for Justice, Equality and Law Reform proposes to refuse them entry and put infected persons back on a return flight. There is nothing in the legislation that says otherwise that they are to be refused entry. An immigration officer will be there at the point of entry and that is what he will have to look at.

Drug addiction is another criteria. We have as much in the way of drug addiction as any other country, so why we are deciding to refuse people entry on these grounds is beyond me.

Those working in psychiatric medicine to whom I have spoken have objected strongly to the last part of the Schedule. The Department did not contact anyone in that field to whom I spoke, including the Royal College of Psychiatrists, about including this section in the Bill. Schizophrenia Ireland is dismayed because this is virtually a description of someone in a florid attack of schizophrenia. The positive symptoms of schizophrenia are likely to be delusions, hallucinations, disorganised thinking and disorganised behaviour. This is exactly the type of person who is to be excluded from entry here rather than being taken into care and given proper treatment. This is such a retrograde way of looking at disease, mental and physical, that I cannot support its inclusion in the Bill.

I expressed the view on Second Stage that I could not understand how the word "disability" had appeared in the Bill as initiated and, as a result, that I would not be able to support it. There was a generally negative reaction to the use of the word in the Bill. The legislation was amended in this House, for those of us who were here, and a narrower definition was inserted, under the Mental Health Acts. That too was reviewed in the Dáil and has been further refined and changed. We need to be aware that this is a justice Bill, not a health Bill. While technical medical dimensions arise, the reason for the Bill is a High Court judgment concerning documents.

The explanatory memorandum stated that the changes were minimal. I do not see how the operation of the Bill will change. There was only one reason for bringing it before us and it has had to be amended. I said that the amendment made in the Dáil in respect of section 4 and the inclusion of the Schedule, as brought before this House, was a reasonable way of dealing with the matter. It is curious that there is a desire to regulate people leaving their countries, but not coming into this country; different standards apply. The Government has a duty of care to its citizens. Everybody agrees there must be some level of protection, including Schizophrenia Ireland which recognises the critical need for such legislation. It acknowledges the Minister's hard work in a letter to him of 9 February 2004, which was also circulated to Members.

The need for the legislation is accepted but the question arises of how to define the limited circumstances under which someone might be refused entry. Major infectious diseases regulated by the World Health Assembly of the World Health Organisation must be dealt with globally, not just within this country. These might include SARS, avian flu and so on. HIV is the cause of a serious communicable disease but are we going to say that everyone should have a blood test at the airport? I doubt that is the Government's intention. There must be some basic measure to protect the health of our citizens. Senator Henry has not suggested otherwise. She has suggested that all those infectious diseases must be dealt with.

That is a practical point.

Yes. The changes are minimal which leads us to the contentious area, paragraph 6 of the First Schedule:

Profound mental disturbance, that is to say, manifest conditions of psychotic disturbance with agitation, delirium, hallucinations or confusion.

There must be a provision that allows people at the ports to deal with those who are violent or pose a threat to themselves or others by virtue of severe disturbance. Those words strike a reasonable balance. They are not, and will not be used as, an arbitrary device to keep people out of the country. The general line of all the arguments against this Bill seems to have been that its provisions will be used as an arbitrary system for keeping people out of the country. I cannot see how the practice will change from last week, or the week before or several weeks before that. If the Minister of State tells me it will change I would be interested, but I do not expect him to say it.

Thankfully, we are a considerable distance from the time flags flew on the masts of ships indicating "Plague — keep away". I have a certain sympathy for the point of view of Schizophrenia Ireland, which is not appalled but makes some reasonable points. It refers to the common position adopted by the European Union with regard to the removal of a reference to disabilities as being logical because only diseases may justify a measure restricting freedom of movement. "Disabilities" has been removed. One cannot have a situation where one exempts everybody who comes into the country, including some who may be violent and may pose a threat to himself or herself, or to other people. This cannot be omitted from the Bill and we have to trust the discretion and good judgment of the people who are at the ports to ensure that they will act humanely and properly, as they always do.

I am sure that like me many Members have visited Ellis Island in New York and seen the humiliation and fear that people, many of them Irish, had to endure when they entered the United States in the early part of the 20th century. We should never return to a system like that and modern society would not tolerate it if we tried. What has been done in the Dáil is sensible, balanced, right and should be supported.

This morning's debate reveals that there is much expertise available in the Oireachtas, and particularly on Senator Henry's part, that the Minister could have used in putting this Bill through the Houses. Unfortunately, in the Seanad, that opportunity was missed because we cannot have much effect here. The Bill will go through with no changes. We have mentioned the correspondence from Schizophrenia Ireland which I received a couple of days ago. We needed the opportunity to consider that and to make a real input. We can raise points from that correspondence, but that is only going through the motions because we do not have the power to change the amendments.

Schizophrenia Ireland makes the point that a new EU common position has been adopted but that the legislation is based on Directive 64/221/EEC which apparently is four decades old. The common position reflects new thinking in our society and we could have shown the lead by adopting that new position in our legislation. The Minister should consider that soon. Senator Dardis said that we must protect ourselves from people who are violent. I would have thought it much more likely that the people who might be violent or about whom we might have to worry would not display the symptoms mentioned in the legislation. Most of the violent incidents on aeroplanes or at airports, which we read about in the newspapers, are air rage incidents or involve people who have been drinking. The type of violent acts from which we must protect ourselves as a society do not involve people who are covered by the definition in the Bill. I disagree with Senator Dardis on that point.

I hope the Minister will take on board what has been said here today and reconsider the definition. I welcome the fact that an amendment was made in the other House. The current legislation is better than what was originally drafted, which is welcome. However, this area must be re-examined in the near future.

Part of the correspondence which we all received from Schizophrenia Ireland states:

Schizophrenia Ireland would request that the Minister clarify, publicly, that people with psychosis have no connection whatsoever with people who are sociopaths, that there is no scientific evidence linking the two, and that the scientific evidence supports that people with mental illness are no more dangerous to the public than anyone else.

Does the Minister of State support that statement?

I confirm that is accurate. I thank all Senators for their eloquent and learned contributions to this important debate. There is a fair degree of consensus on the matter. Senator Dardis summed it up well. As I stated in my initial response, a person's health status has been rarely used to refuse someone permission to land. As Senator Henry said, it will make little difference in practice. However, it is necessary in principle when drafting legislation. As regards the point that because it comes up little in practice, it is of little value, to say that something is of little value is different from saying something is of no value. There is value to it and it is necessary in principle.

Senator Dardis and the Minister of State, Deputy Brian Lenihan, explained the background to this issue. I concede that what we are doing is introducing emergency legislation to deal with an immediate problem. As a result of the amendments we have accepted, we are putting in place the law as it was understood to be up to 22 January when the High Court made its ruling. As the Minister explained to both Houses, we are doing that on a temporary basis. We are looking at developing a more coherent, forward thinking and comprehensive immigration policy. Work on that legislation is proceeding in the Department of Justice, Equality and Law Reform. Unfortunately, we have had to divert people's time, energy and resources to put this emergency legislation in place. That is regrettable because some of those people will put the more advanced legislation in place.

I accept Senator Henry's point about syphilis, SARS and other communicable diseases. It is unlikely that an immigration officer would be able to conclude that someone coming in through the port of Dún Laoghaire, who is suffering from syphilis, had that disease.

The mind boggles as to how an immigration officer would find that out.

On the other hand, that person may have behaved notoriously badly in another country and the notification may have been sent forward to the Irish authorities. That has happened. It is a matter of discretion for the immigration officer. The immigration provision in the United Kingdom states that an immigration officer must refuse leave to land to a person on confirmation from a medical inspector that for medical reasons it is undesirable to admit a person seeking leave to enter the United Kingdom. That covers a multitude. The immigration officer must only conclude that it is undesirable to allow a person to land. It is at his or her discretion and he or she cannot be questioned. The United Kingdom is not worried about SARS, syphilis or communicable or non-communicable diseases. It is not going into the same detail as we are. The immigration officer has total discretion to refuse a person leave to land. Even with this emergency legislation we are putting through today, our regime is infinitely more liberal.

It is totally impractical.

If we adopted the United Kingdom's approach, which no one could argue is impractical, I am sure the Senator would have something to say about that. We cannot have it both ways.

The law is now exactly as it was understood to be up to 22 January. We have adopted the same regulations for both EEA and non-EEA nationals. We are working hard in the Department to update the legislation. I think Sinn Féin tabled an amendment in the other House to the effect that there should be a 270 day time limit on this legislation. The Minister did not accept it. We were not opposed to it in principle, but we could not guarantee that the other legislation would be ready within 270 days. It might take slightly longer than that, but we hope to have it before both Houses of the Oireachtas by the middle of next year at the latest.

As regards the point made about the letter from Schizophrenia Ireland, I am aware there is an EU directive in gestation. However, it has not yet seen the light of day. If it becomes an EU directive, which we would welcome, we will be obliged to transpose that into our domestic law. It relates to the psychiatric element of the issue. However, because it is an EU directive, it will only cover EEA nationals. If we introduce that law for EEA nationals, we will apply the same regulations and law to non-EEA nationals. In view of the correspondence from Schizophrenia Ireland, there is a note from the Department which I will read into the record. It states:

I am aware that there is a Common Position arrived at by the EU Council of Ministers, the effect of which is that there should be a new Directive covering all aspects of the Treaty right of free movement for EU citizens, and that as part of that proposed Directive, the present Annex to Directive no. 221/64/EEC should be replaced with a considerably more succinct expression of the health restrictions on the right of free movement. I am aware that the proposed restrictions will not include reference either to drug addiction or to profound mental disturbance.

I am also aware that the proposed Directive is not yet an actual Directive, and will not be unless and until the European Parliament concludes its current consideration of the matter and does so in a manner that clears the way for the making of the proposed Directive. This Bill deals with the position as it is now: it puts in place for non-EEA nationals exactly the same regime as regards health-based restrictions as at present exists for EEA nationals, restoring the position as it has been under the Aliens Order 1946 as amended by the Aliens Order 1975. This Bill makes no change to what was thought to be the law in this regard until 22 January last, when the High Court declared its statutory basis to be unconstitutional — no more and no less.

If and when the Common Position develops into an actual EU Directive (which I would welcome, and hope that it will be sooner rather than later), I can assure the House that the necessary steps will be taken, as they must be, to implement that Directive in Irish domestic law. The opportunity will be taken at that stage to review the position regarding health restrictions on the entry of non-EEA nationals to the State.

As I have said, the fairest arrangement, and in practical terms the simplest to operate, is that the same criteria should apply to both categories of persons; and that is the most likely outcome of that review.

I would finally like to reiterate that the conditions in section 4(3)(c) are, like all of the other conditions listed in that subsection, merely a basis on which the immigration officer may exercise a discretion on the Minister's behalf to refuse leave to land. The existence of one or more of the conditions listed at paragraphs (a) to (k) is not a compulsion to refuse leave to land, merely the basis for a discretion — a discretion being exercised as a matter of daily practice frequently in favour of the incoming non-national.

Group 3 concerns amendment No. 3. The group originally concerned amendment No. 19.

The list of groupings which we have received is very misleading. Amendment No. 19 relates to hotel registers.

Amendment No. 19 will be dealt with later as it is in group 6. For the benefit of the Members, group 3 is the subject matter of amendment No. 3. Group 4 is the subject matter of amendment No. 6. Group 5 is the subject matter of amendment No. 17. Group 6 is the subject matter of amendments Nos. 19 and 20.

Amendment No. 3 refers to the subject matter of an amendment tabled by the Labour Party in the Dáil and Seanad. I welcome the Minister's acceptance of our point.

I thank the Labour Party for its input on this matter. The Parliamentary Counsel has had the opportunity to consider the appropriate updating of the material in the Bill regarding the privileges and immunities of diplomats, consular officers and the staff of international bodies with similar privileges and immunities. The original material in the Bill as published was drawn from section 5(4) of the Aliens Act 1935. While it would have been adequate to the purpose, it is preferable to use the modern language of amendment No. 3 making reference to the more recent statutory provisions. I thank Senators for their support in updating this.

Group 4 is the subject matter of amendment No. 6.

Amendment No. 6 ensures that all references to an immigration officer in other Acts are tied into this Act. The immigration officers will henceforth be appointed under this Bill when enacted. There are references in earlier statutes which create duties, functions and obligations on immigration officers "appointed under the Aliens Order 1946". For example the Refugee Act imposes obligations on immigration officers referred to in this way regarding the admission of persons seeking asylum into the State. This amendment puts beyond doubt that those obligations fall on all immigration officers even though they will now be appointed under this Act.

Group 5 is the subject matter of amendment No. 17.

Again this refers to a Labour Party proposal. I thank the Minister for accepting it.

Amendment No. 17 makes explicit the requirement of reasonableness in the steps to be taken by a householder who has a non-national staying in the house under section 9(4) of the Bill. While the courts could as a matter of course read that requirement into the section, it is no harm to spell it out plainly. Section 9(4) of the Bill forms part of the mechanism for the control of non-nationals in the State. It has been the law since 1946 and complements the remaining provisions of section 9 regarding registration.

Group 3 is the subject matter of amendments Nos. 19 and 20.

Does amendment No. 19 introduce a new section?

It is a variation of it.

We are amending the Immigration Act following a High Court decision. Why are we taking the opportunity to make other changes? Will this improve the Bill? A keeper is defined as somebody who owns a hotel or other accommodation where non-nationals are staying. How is such a person expected to keep a register of those people? Will they have to keep a register of everybody? Will the non-nationals be picked out, which could lead to confusion and embarrassment in many cases?

We have been under considerable pressure to do something far more radical than we are doing. The Senator has asked why I am taking the opportunity to make some changes. This is emergency legislation. We are considering introducing more comprehensive legislation next year. Even though it is emergency legislation, we are now incorporating the changes we can to make it more modern pending the introduction of the more comprehensive legislation next year. During the debate on this legislation various speakers in both Houses of the Oireachtas made the point that this section imposes somewhat onerous requirements particularly on those in Gaeltacht areas, or those in Tralee making a few bob by accommodating people overnight during the Rose of Tralee festival. We are trying to accommodate such people in the section. This amendment improves the Bill.

People are already obliged by law to keep a register of all those staying in guesthouses, hotels or other commercial accommodation. We are changing that slightly. The practice is to register everybody including nationals and non-nationals. Now we are saying that if it transpires that they have both nationals and non-nationals and they do not register the nationals — the local people — that will no longer be an offence. I will read into the record the note from the Department, which explains the provenance of the changes.

Amendment No. 19 distinguishes between lodging or accommodation being provided on a commercial basis, i.e. by a hotel or guesthouse on the one hand and that of the case of an individual sometimes perhaps an older person who would maintain a lodger and where, say, only a single room in the house would be in question. This is in order to ensure that section 10 of the Bill will not create too onerous a burden on the bean an tí in the Gaeltacht or the farmer who lets out a few rooms for the Rose of Tralee festival or the householder who keeps a lodger, but who cannot be said to be engaged on a commercial scale in the business of providing accommodation for gain.

Amendment No. 19 replaces subsection 5 of the section and redefines the classes ofpremises encompassed by the section to include the concept of engaging in the business of providing accommodation on a commercial basis.

Amendment No 20 ensures that the offence of failure to keep a register of non-national in accordance with section 10 will no longer be subject to arrest without warrant.

Is Report Stage agreed?

Question put and declared carried.
Question proposed: "That the Bill do now pass."

The Liu Chang case exposed serious defects in our immigration laws and left the State in a vulnerable position. I do not dispute the need to upgrade our immigration laws. We need to protect our citizens and those coming into the country and ensure their rights are upheld and I doubt anyone on this side of the House would dispute that. However, I have reason to question the Minister's good faith on this issue.

The Bill goes further than placing existing practice on a statutory footing. It introduces new concepts into Irish law which have been outlined many times to the Minister. However, I find the way in which this Bill has been rammed through the Houses most reprehensible. I think the Minister of State was present when this side of the House objected to the way in which the Bill was dealt with last week and walked out.

I was not present.

Perhaps it was Deputy Brian Lenihan. The Bill was dealt with in a shoddy manner in this House and in too hasty a manner in the Dáil also, which marked a low point in my time in this House. It is indicative of this Government's increasing disregard for the Seanad and it does not bode well for the future of democracy under the Fianna Fáil-Progressive Democrats coalition. It is not so long ago that Deputy Michael McDowell was running up every lamp-post in Dublin South-East alerting all the minions to the dangers of single party Government. It seems we now have single party Government. The party which was to be the Government watchdog is indistinguishable from Fianna Fáil. Like Fianna Fáil, its purpose is to stay in power at whatever cost, as stated by the Taoiseach on Tuesday, 9 December 2003.

Not so long ago in this House, the Opposition was afforded the courtesy of consultation and matters would be guillotined only with the agreement of the Opposition. There is an air of arrogance about the Government which is epitomised by the attitude of this Minister for Justice, Equality and Law Reform. On his appointment, I had some hope in this Minister but he has let himself down badly. In so many ways he has failed the people. He has failed to deal adequately with gangland crime, to establish a Garda ombudsman, to establish night courts, to deliver 2,000 extra gardaí and he has failed to reform the libel laws. Instead, his answer to every problem seems to be to introduce new legislation. In doing so, he is unrelenting in his efforts to compromise the legislative process, flout Standing Orders and depart from the long-standing practice of affording some degree of courtesy to the Opposition.

I propose to explain the basics of legislation because this Minister, more than any other, needs to be reminded how this democracy used to function in the days when he wrote articles for theSunday Independent and presided in the Office of the Attorney General.

Article 15° 2.1 of the Constitution provides:

The sole and exclusive power for making laws in the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

On a point of order, a Leas-Chathaoirligh. It was agreed before you took the Chair that Opposition Senators could address the Bill in general. I do not see what the presentation being made by Senator Terry has to do with the Bill.

I am entitled to address the Bill in whatever manner I see fit in terms of how the Government has dealt with it. This is an opportunity for me to address how I disagree with the shoddy manner in which the Government has dealt with the Bill.

Allow Senator Terry to continue.

The Oireachtas consists of three organs, namely, the Dáil, the Seanad and the President. In order to be valid, primary legislation must be examined and considered by all three. The rationale behind this requirement is to ensure that the democratically elected representatives of the people are afforded a sufficient amount of time to give detailed consideration to every provision of every Bill. The application of the guillotine defeats this intention. The late introduction of voluminous Government amendments defeats this intention. The very actions of this Government have defeated and continue to defeat the intention of Article 15° 2.1 of the Constitution.

When a Bill is forced through these Houses, it is contrary to the spirit of Article 15° 2.1. The Bill is put through each Stage in name only. A Bill which has been pushed through with the force we have seen on the Immigration Bill 2004 would be vulnerable and likely to succumb to constitutional challenge.

A number of features distinguish primary legislation from secondary legislation. The main distinction between primary legislation and secondary legislation lies in the level of parliamentary scrutiny which these enactments receive. Scrutiny by the three organs of the Oireachtas is fundamental to primary legislation. Substituting secondary legislation where primary legislation is really what is required has been frowned upon by the courts.

In the Liu Chang case, the courts were severely critical of the Government for purporting to give statutory weight to secondary legislation. It seems this Government is about to make the same mistake again by making an order amending primary legislation by secondary legislation in a desperate attempt to introduce electronic voting. There is little in my mind to distinguish the Immigration Bill 2004 from a piece of secondary legislation. The level of scrutiny it has received denigrates its status as primary legislation. It may become an Act, but in title only.

The Laurentiu case first highlighted flaws in our immigration laws in 1999. The then Fianna Fáil-Progressive Democrats Government sought to rectify those problems through section 2(1) of the Immigration Act 1999. That section was struck down in recent weeks by the High Court in the Liu Chang case. However, five years after the High Court first highlighted the problems in this area, the Minister is on his third attempt to fix the problem. Will this legislation be a case of third time lucky for the Minister? History has a habit of repeating itself. Rushed legislation makes for poor legislation. It is an abuse of the legislative process which does not solve problems but creates many more.

The volume and frequency of Government amendments to this Bill is symptomatic of a greater problem. This Bill was drafted at speed with the result that every day the Bill lay in the Department of Justice, Equality and Law Reform, more errors and flaws were spotted. In the case of the controversial disability provision, one version appeared in the proof of the Bill, which was circulated to us, then the Bill initiated in the Seanad contained an entirely different disability provision and the Bill before us today contains yet another version of the disability provision. In a few days, one provision has been changed three times. This is not an isolated occurrence — many other mistakes in the Bill have been rectified and amended by the Minister. How many more mistakes will be identified when this Bill is enacted? If we were afforded proper time to consider the Bill, I have no doubt that a considered debate and constructive amendments would have ensured that it was stronger and better. I watched the Minister in the Dáil reject Opposition amendments one after another in a style more appropriate to the Four Courts. Amendments are proposed by the Opposition with the intention of improving the Bill. The Opposition is eager to ensure that the Minister gets this Bill, more than any other, right. It is in that vein that amendments were proposed. To say we are gravely unhappy is an underestimation of our opposition to the Bill. I will show my discontent by opposing the legislation when it is put to a vote.

I share Senator Terry's concerns about the manner in which the Bill has been rushed through the Houses of the Oireachtas. Regardless of the fact that the legislation is described as temporary, we have a duty to try to make it seem that we have considered it carefully, but that has been virtually impossible to do with this Bill. I also cannot support this Bill because I do not believe the Department of Justice, Equality and Law Reform sought advice on the medical aspects of the legislation, particularly the section I addressed which is now the First Schedule. I do not believe the Department of Health and Children was adequately consulted — I do not know if it was consulted at all — and I do not think the National Disease Surveillance Centre was consulted.

I have not met anyone in public health who was consulted about it and I certainly have not found anyone who could have given advice from a psychiatric point of view. The Minister of State described how broad the UK legislation is but said our Bill is better. I think the Bill is probably worse because totally impractical areas are being singled out when I have given medical evidence that can be verified which shows that these areas are considered impractical. I remember getting a work permit in the 1960s to go to the United States. As non-nationals, one had to be X-rayed, have blood taken and so forth. If we want to look for tuberculosis and syphilis by taking blood samples, that is fair enough, but there is no point singling out specific conditions in important legislation, which will be very rarely implemented. What value is it to have such conditions specified? I certainly will not be able to support the Bill.

I empathise with the Minister of State at the Department of Justice, Equality and Law Reform, Deputy O'Dea, because he is carrying the can for the Minister. Equally, the other Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, was in a similar position the week before last when the legislation was introduced. On previous occasions, when the Minister for Justice, Equality and Law Reform introduced legislation he spent time discussing the issues with Senators, as did the Ministers of State. It is notable that the Minister for Justice, Equality and Law Reform stayed away when the Seanad was being treated very badly. Even Senator Mansergh commented that it was frankly unanswerable to rush the legislation through the Seanad because there was time available before it went to the Dáil for a more considered debate.

I reluctantly walked out of the debate. I like dealing with amendments as I believe the Opposition can make a difference. The Labour Party tabled 29 of the 40 plus amendments, yet only 20 to 30 minutes was allowed for the debate on those amendments. I noted that the Leader of the House and Members on the Government benches tended to blame the Department for the manner in which the legislation was dealt with, but whereas the ultimate responsibility rests with the Minister for Justice, Equality and Law Reform, we order the business of this House and it is up to the Leader and the Members on the Government side to say "No" and to refuse to deal with legislation in that way. Deputies did so in the Dáil and I do not see why we cannot do so in the Seanad. The fact is that amendments were dealt with in the Dáil in a different way from here, although there were still complaints. Obviously, I welcome the acceptance of the points made by the Labour Party.

Difficulties arose with the previous legislation because of the way it was handled. It is possible that a case could be made that the constitutional requirement to deal with legislation in a particular way was not met in this case due to lack of time. The Department and the Minister need to think about that point.

The Minister for Justice, Equality and Law Reform has mentioned several times that comprehensive legislation will be drafted. That is needed because emergency legislation is problematic. There needs to be adequate consultation on the proposed legislation so that everybody has an input to it. The Labour Party has no problem with legislation to control immigration, but we believe it should be fair and there should be a positive system for economic immigration. I hope that will be provided for in the legislation.

I hope there will be a comprehensive consultation process and that the different points of view are accommodated, leading to greater understanding. The representatives of immigrants groups have to be consulted properly so that they too are assured of a reasonable and fair system. It will be easier to deal with racism and other issues if everybody understands that the system is fair.

I thank everybody for contributing today and on the previous debates on the Bill. In response to Senator Tuffy, it is emergency legislation and almost by definition, one's chances of wide consultation on it are slim. This is emergency legislation to deal with an emergency because, as matters stand, we have no effective and workable mechanism in place to prevent illegal immigration to this country. The emergency will continue as long as the proposed legislation is not passed. It is preferable to have a longer time to debate legislation, but the fact that it comes under the emergency heading, which we have to do occasionally, does not necessarily mean it is bad legislation anymore than if it was debated for five or six months. The Aliens Act 1999, the predecessor of this Bill, was debated in both Houses for approximately five months. It was considered exhaustively, but it was found to be defective by the courts. I agree with the Senator's main point that we need to consult widely and that is why the very extensive consultation process for the more extensive immigration Bill, which I hope will come before the Oireachtas next year, is already underway.

Senator Terry stated that the Bill introduces radical changes. I do not know where the Fine Gael Party stands on the issue. On the one hand, Members complain that the Bill only restates the laws on the Statute Book, the amended Aliens Order 1946, and should have gone much further but, on the other, Fine Gael spokespersons say the Bill is going much further. The Government's intention is to put what was in secondary legislation into primary legislation, to put it in the Statute Book to satisfy the requirements of the High Court judgment in the recent case of 22 January 2004. In doing so, we have made those changes that we found it possible to make in the short time available to us. For example, we have taken out some of the more offensive terminology, which is now a relic of history. We have made a few very minor changes to the Bill. As I said, it would be ludicrous to get into the more radical changes about which we are now consulting before the consultation process had taken place. If we were to make extensive changes at this stage, within the short time available, that would be extremely risky. The most substantial change from the old system is that provision is being introduced into Irish law to enable the charging of fees for immigration services, which is fairly non-contentious.

Senator Terry said that disregard was being shown for the Seanad. I come here quite often to deal with the minutiae of legislation, and I have the highest regard for this House. How the House manages its business is essentially a matter for it. I do not want to get into a major debate about how time is taken up in the other House by people who are calling for more time to debate legislation. I do not want to be contentious on that matter today.

Once again, I thank Senators for their contributions. It was mainly as a result of contributions made in the Seanad that the Bill, which one hopes will be passed by this House today and sent to the President for signature, is better than that with which we started off. That is the function of Parliament.

Question put.
The Seanad divided: Tá, 29; Níl, 22.

  • Bohan, Eddie.
  • Brady, Cyprian.
  • Brennan, Michael.
  • Callanan, Peter.
  • Cox, Margaret.
  • Daly, Brendan.
  • Dardis, John.
  • Feeney, Geraldine.
  • Fitzgerald, Liam.
  • Glynn, Camillus.
  • Hanafin, John.
  • Kenneally, Brendan.
  • Kett, Tony.
  • Kitt, Michael P.
  • Leyden, Terry.
  • Lydon, Donal J.
  • Mansergh, Martin.
  • Minihan, John.
  • Mooney, Paschal C.
  • Morrissey, Tom.
  • Moylan, Pat.
  • O'Brien, Francis.
  • Ó Murchú, Labhrás.
  • O'Rourke, Mary.
  • Ormonde, Ann.
  • Phelan, Kieran.
  • Scanlon, Eamon.
  • White, Mary M.
  • Wilson, Diarmuid.


  • Bannon, James.
  • Bradford, Paul.
  • Browne, Fergal.
  • Burke, Paddy.
  • Burke, Ulick.
  • Coghlan, Paul.
  • Coonan, Noel.
  • Cummins, Maurice.
  • Feighan, Frank.
  • Finucane, Michael.
  • Hayes, Brian.
  • Henry, Mary.
  • McCarthy, Michael.
  • McDowell, Derek.
  • McHugh, Joe.
  • Norris, David.
  • O'Meara, Kathleen.
  • Phelan, John.
  • Ross, Shane.
  • Ryan, Brendan.
  • Terry, Sheila.
  • Tuffy, Joanna.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Henry and Terry.
Question declared carried.