I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Also, on Report Stage each non-Government amendment must be seconded. Amendments Nos. 1, 2, 4 and 6 are related and may be discussed together, by agreement. Is that agreed? Agreed.
Control of Exports Bill 2023: Report and Final Stages
I move amendment No. 1:
In page 11, between lines 5 and 6, to insert the following:
““relevant occupied territory” means a territory which is occupied within the meaning of the Fourth Geneva Convention, and which has been-
(a) confirmed as such in a decision or advisory opinion of the International Court of Justice,
(b) confirmed as such in a decision of the International Criminal Court,
(c) confirmed as such in a decision of an international tribunal, or
(d) recognised as such by a resolution of both Houses of the Oireachtas;”.
I second the amendment.
I welcome the Minister of State, Deputy Calleary, to the House to discuss this very important issue. The Civil Engagement Group very much appreciates the communication from Department officials in the past week, and even this morning we spoke in the House about the importance of cross-party support and communicating with officials. We thank them for that. I will not speak further on the amendments but I intend to press them.
I thank Senator Flynn for her engagement on the Bill and also thank Senators Black and Ruane for their engagement with my officials after last week's Committee Stage.
The export of dual-use and military goods to all third countries - I emphasise "all" - including occupied territories, are currently and will continue to be automatically subject to control and licensing requirements. When assessing an application for an export authorisation, my Department has regard to a range of factors, including the nature of the item to be exported and its design purpose, the intended end use and the intended end user - I emphasise both phrases - and the political and human rights situation in the ultimate destination.
The EU common position defining common rules governing control of exports of military technology and equipment sets out eight criteria for assessing an application for an authorisation, including respect for human rights in the country of final destination, as well as respect by that country of international humanitarian law, and including the internal situation in the country of final destination as a function of the existence of tensions or armed conflicts, whether sanctions or embargoes apply and whether there is a diversion risk, among other things.
The Attorney General has consistently advised that trade is an EU competence and that any unilateral action by Ireland as regards the relevant occupied territories will be contrary to EU law. Article 3 of the Treaty on the Functioning of the European Union provides that the Union shall have exclusive competence in the common commercial policy. Article 207 of the Treaty on the Functioning of the European Union provides that trade with third countries falls within the common commercial policy of the EU and, therefore, it is an area in which the EU has exclusive competence. Unilateral action by a member state in the area of exclusive EU competence would be a violation of a member state's obligations under the Treaty on the Functioning of the European Union and would be an actionable wrong which could be litigated by the European Commission before the European Court of Justice.
For those reasons and as my hands are tied legally, I cannot accept these amendments.
Amendment put and declared lost.
I move amendment No. 2:
In page 18, between lines 21 and 22, to insert the following:
“Restriction on export of dual-use items to a relevant occupied territory
20. (1) Notwithstanding sections 10, 11, 12, 13, 14, 15, 16, 17 and 18, authorisation shall not be granted to a person or organisation to transit a dual-use item through or from the State where such an item is destined for a relevant occupied territory or where there is a significant likelihood that the item may be transported to a relevant occupied territory.
(2) Where a person or organisation attempts to export a dual-use item in contravention of subsection (1) they shall be guilty of an offence.
(3) For the avoidance of doubt, subsection (1) applies to the Defence Forces and An Garda Síochána.”.
I second the amendment.
Amendment put:
The Seanad divided: Tá, 7; Níl, 28.
Tá
- Boylan, Lynn.
- Craughwell, Gerard P.
- Flynn, Eileen.
- Gavan, Paul.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Ahearn, Garret.
- Blaney, Niall.
- Byrne, Malcolm.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Currie, Emer.
- Daly, Mark.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Gallagher, Robbie.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- McGahon, John.
- McGreehan, Erin.
- O'Donovan, Denis.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Wilson, Diarmuid.
Tellers: Tá, Senators Eileen Flynn and Fintan Warfield; Níl, Senators Robbie Gallagher and Joe O'Reilly.
Pursuant to Standing Order 57A, Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and the Whip of the Fianna Fáil Group has notified the Cathaoirleach that the Fianna Fáil Group has entered into a voting pairing arrangement with Senator Higgins for the duration of her maternity leave.
Amendment declared lost.
I move amendment No. 3:
In page 21, between lines 17 and 18, to insert the following:
“(5) Where a broker obtains authorisation or a licence in the circumstances described in subsection (3), a record of such authorisation or licence shall be provided to the Minister by the broker which shall include information regarding the end-use of military items for which such authorisation or licence has been granted.”.
I second the amendment.
Last week, our meetings with officials helped flesh out the position the Department is taking on amendment No. 3. However, we still have valid concerns about this area and we wish to hear the Minister of State's reply.
I thank the Senator and her colleagues for engaging with my officials on this amendment last week. Transparency in relation to the export of military equipment from the EU is a key objective of the EU's export control framework. To give practical effect to this objective, all EU member states are obliged to provide detailed annual returns to the EU on licensing for military equipment by a member state. Based on these returns, the Council of the European Union publishes an annual report providing detailed information on exports of military equipment authorised by EU member states. The most recent edition was published in December 2022 and reported on exports during 2021. Furthermore, in 2021, the European External Action Service launched a searchable online database which contained the annual military equipment export data of all EU member states since 2013. I am advised this is accessible and relatively easy to use.
My concern is this proposed amendment would introduce a duplicate regulatory requirement which would be contrary to effective operation of the Single Market. Furthermore, I am not convinced it would list any new information. The effectiveness of EU export controls is predicated on consistent and uniform implementation of export controls across the member states. If Ireland were to adopt a unilateral requirement in this matter, it would not be in keeping with this goal. Therefore, I cannot accept this amendment.
Amendment put and declared lost.
I move amendment No. 4:
In page 22, between lines 2 and 3, to insert the following:
“Restriction on export of military items to a relevant occupied territory
28. (1) Notwithstanding sections 24, 25, 26 and 27 authorisation shall not be granted to a person or organisation to transit a military item through or from the State where such an item is destined for a relevant occupied territory or where there is a significant likelihood that the item may be transported to a relevant occupied territory.
(2) Where a person or organisation attempts to export a military item in contravention of subsection (1) they shall be guilty of an offence.
(3) For the avoidance of doubt, subsection (1) applies to the Defence Forces and An Garda Síochána.”.
I second the amendment.
Amendment put:
The Seanad divided: Tá, 7; Níl, 28.
Tá
- Boylan, Lynn.
- Flynn, Eileen.
- Gavan, Paul.
- Moynihan, Rebecca.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Níl
- Ahearn, Garret.
- Blaney, Niall.
- Byrne, Malcolm.
- Carrigy, Micheál.
- Casey, Pat.
- Chambers, Lisa.
- Clifford-Lee, Lorraine.
- Conway, Martin.
- Crowe, Ollie.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Doherty, Regina.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Gallagher, Robbie.
- Horkan, Gerry.
- Kyne, Seán.
- Lombard, Tim.
- Martin, Vincent P.
- McGahon, John.
- McGreehan, Erin.
- O'Donovan, Denis.
- O'Loughlin, Fiona.
- O'Reilly, Joe.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Wilson, Diarmuid.
Tellers: Tá, Senators Eileen Flynn and Fintan Warfield; Níl, Senators Robbie Gallagher and Joe O'Reilly.
Pursuant to Standing Order 57A, Senator Alice-Mary Higgins has notified the Cathaoirleach that she is on maternity leave from 19th June to 19th December, 2023, and the Whip of the Fianna Fáil Group has notified the Cathaoirleach that the Fianna Fáil Group has entered into a voting pairing arrangement with Senator Higgins for the duration of her maternity leave.
Amendment declared lost.
Before we go to amendment No. 5, I welcome to the Visitors Gallery, from County Mayo, representatives of Bonniconlon ICA. We have timed it such that they would be here with the Minister of State, who is hosting them today. I hope they enjoy their visit to Leinster House. We are delighted they have come in to see Seanad Éireann and their Minister of State in action. I thank them for coming to Seanad Éireann. We regret Annie May could not be here but she is working hard back in Mayo to keep the show on the road.
I move amendment No. 5:
In page 22, between lines 2 and 3, to insert the following:
“Report on military and dual-use items utilising automated means
28. (1) The Minister shall, within 18 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining engagement he or she has had at European Union level regarding the development of additional and more strict export controls on military and dual-use items which utilise automated means to function or which have the capacity to be used through or with automated means.
(2) In this section, “automated means” means the use of any algorithm, recommender system or other automated system which uses data processing, machine learning, or other artificial intelligence techniques to make decisions or suggest information to users.”.
I second the amendment.
We have to say as the Civil Engagement Group that it is regrettable the Minister of State has not accepted any of our six amendments. After all the hard work that went in last week to creating the amendments and talking to the Minister of State’s officials, last night the Government tabled a motion without any communication with us. It is a wasted opportunity for the Government not to take on board our amendments.
I join the Leas-Chathaoirleach in welcoming Bonniconlon ICA. I hope they are having a good day.
I acknowledge Senator Flynn’s remarks but I have outlined that legally, we cannot accept some of the amendments due to the Attorney General's advice and due to the fact they are captured within the Bill. Amendment No. 5 is also captured within the Bill.
Dual-use items and military equipment will be subject to export licensing requirements, irrespective of whether they incorporate automated means. We are in ongoing engagement with the EU on the regulation of artificial intelligence so we can harness the societal and economic benefits it promises, while simultaneously protecting our citizens from harmful or nefarious applications of this technology. The engagements relate to the regulation of the use of artificial intelligence within the EU through the EU’s forthcoming AI Act as well as in relation to export controls.
In the context of export controls, AI is one of several new and emerging technologies, including quantum technology, which are being assessed by the European Commission in conjunction with member states, including Ireland. This assessment aims to identify the new and unique risks these technologies will give rise to and appropriate mitigating measures, including enhanced export controls.
Section 4 of the Bill will require the Minister of the day to prepare an annual report on the operation of the Act and for that report to be laid before each House of the Oireachtas. Section 4(2)(e) provides that this report should include information on sectoral trends in policy, including new EU legislation and controls relating to dual-use or military items. Therefore, it is our contention the Bill already provides for a report to both Houses of the Oireachtas on EU developments relating to enhanced export controls for dual-use or military items that utilise automated means or AI. Because the Bill already captures what the amendment seeks to achieve, I cannot accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 23, between lines 20 and 21, to insert the following:
“(d) the authorisation is being sought for the export of a military item or dual-use item which is destined for a relevant occupied territory or where there is a significant likelihood that the item may be transported to a relevant occupied territory,”.
I second the amendment.
Amendment put and declared lost.
Bill received for final consideration.
When is it proposed to take Fifth Stage?
Is that agreed? Agreed.
Question proposed: “That the Bill do now pass”.
I acknowledge the work of officials in my Department, particularly Dr. Eamon Cahill and Mr. Matthew Geoghegan, who are with us in the House this evening.
The Bill seeks to ensure that Ireland continues to play its part in preventing potentially dangerous items being exported from the EU and falling into the wrong hands. The horrific events of this week highlight again the senseless death, suffering and destruction caused by armed conflicts around the world. I echo the global concern for innocent civilians - men, women and children – who bear the brunt of armed conflict and condemn all such terrible acts of violence.
Maintaining international stability and security is at the heart of export controls. Controls on the export of certain goods are a crucial component of global non-proliferation efforts. When targeted correctly and enforced effectively, they are a powerful tool. The Bill will ensure that Ireland has a comprehensive and robust framework for implementing and enforcing export controls. There is also a need to strike a balance with the pursuit of free trade and the functioning of open markets. The Bill seeks to address that balance by providing transparency and consistency for exporters and incorporating a list-based approach to controls.
I thank Senators for their engagement on the Bill, particularly Senators Ruane, Black and Flynn for their serious considerations of the matter since Committee Stage last week.
Question put and agreed to.
I propose to suspend until 5 p.m.
Is that agreed? Agreed.
Cuireadh an Seanad ar fionraí ar 3.16 p.m. agus cuireadh tús leis arís ar 5.02 p.m.
Sitting suspended at 3.16 p.m. and resumed at 5.02 p.m.