I welcome the Minister of State at the Department of Foreign Affairs, Deputy Conor Lenihan, and his officials. We are considering Committee Stage of the Diplomatic Relations and Immunities (Amendment) Bill 2005. It is proposed to group the following amendments for the purposes of debate: amendments Nos. 3 to 5, inclusive. All other amendments will be discussed individually.
Diplomatic Relations and Immunities (Amendment) Bill 2005: Committee Stage.
The Chairman has informed me that amendment No. 1 in my name is outside the scope of the Bill, the purpose of which is to clarify what might be regarded as the constitutional ambiguity arising from the Supreme Court decision on the division of powers.
Amendment No. 1 has been disallowed because it is outside the scope of the Bill in that it relates to the Vienna Convention on the Law of Treaties, whereas the Bill's provisions relate to the Vienna Convention on Diplomatic Relations.
I am aware of the distinction, just as I am aware of the fact that we have not signed the declaration.
I beg the committee's indulgence as this is the first time I have presented legislation or represented the Government in dealing with legislative matters. My Department tends to be involved more in policy than legislation.
Although the Government proposes to accede to the Vienna Convention on the Law of Treaties, before the State can become a party to the convention, further consideration of its terms is necessary due to their complexity. To this end, a study of the terms of the convention is ongoing. Many provisions of the convention merely codify existing rules of customary international law, by which Ireland is already bound in its treaty relations with other states. The Government is satisfied that while it is desirable that Ireland should in due course become a party to the Vienna Convention on the Law of Treaties, our international relations are not adversely affected by the fact that we have not yet acceded to it.
In addition, an Act of the Oireachtas might not be necessary to give the convention force of law in Ireland. If it was decided to do so, such incorporation should be provided for in a proper manner in a separate Act of the Oireachtas, with the full text of the convention set out in a Schedule. For these reasons, the Government is strongly of the view that the proposed amendment is inappropriate.
I appreciate the Minister of State outlining the Government's thinking. While I am aware that we have not signed up to the Vienna Convention on the Law of Treaties, I welcome the fact that this is under consideration and hope it will soon be done. Will the Minister of State convey my anxiety that we also make the declaration regarding the International Court of Justice? Again, while we are a beneficiary of and contributor to accepted international customary law, our reputation would be enhanced by our taking on the discipline of both signing up and making the necessary declaration in the second case.
Would the Minister of State like to make his introductory remarks?
I am pleased to bring the Diplomatic Relations and Immunities (Amendment) Bill 2005 before the committee and thank members for their consideration of it. Since completion of Second Stage an explanatory memorandum to the Bill which I hope is of assistance has been circulated to members. As the Bill is technical in nature, I wish to briefly outline the background.
In 1967 Ireland ratified the Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963. These two international treaties were adopted so as to codify the formal relations between states and their official representatives. Effect was given to Ireland's obligations under the conventions by the Diplomatic Relations and Immunities Act 1967. In addition to conferring certain privileges and immunities on specific bodies, namely, the United Nations, the Council of Europe, the OECD and the Customs Co-operation Council, the Act contains a more general provision. Part VIII permits the Government, by order, to designate an international organisation or body, of which the State or Government is or intends to become a member, to be an organisation to which Part VIII shall apply. Under section 40 of the Act, the Government may, by order, confer on such a designated body and its officials "inviolability and exemptions, facilities and immunities, privileges and rights". In addition to section 40, section 43 of the Act permits a Government order to confer immunities and privileges on international judicial bodies or semi-judicial bodies established under an agreement to which the State or Government is or intends to become a party.
The Diplomatic Relations and Immunities (Amendment) Act 1976 expanded Part VIII of the 1967 Act by the insertion of section 42A which allows immunities and privileges to be conferred on international organisations and bodies in accordance with international agreements to which the State or Government is or intends to become a party. As was common drafting practice at the time, Part VIII permits the Government to confer, by order, privileges and immunities in broad terms; the power to confer privileges and immunities is not expressly stated to be limited to matters such as those covered by the Vienna Convention on Diplomatic Relations 1961. However, subsequent jurisprudence on the separation of powers and consequent changes in drafting practice indicate that the discretion of the Government should be formally limited so as to limit its power to make such orders to the types of privileges and immunities conferred in the 1961 Vienna Convention. The privileges and immunities conferred by orders made under Part VIII are so limited.
The Bill will only amend Part VIII of the 1967 Act, as amended in 1976, and is solely concerned with the absence of an express limitation on the nature of immunities and privileges which a Government order may confer on international bodies and organisations. The Bill will in no way alter the substance of Ireland's commitments or obligations in relation to international privileges and immunities. It will simply insert into the 1967 Act a clear statement of principles and policies which will serve as a limitation on the exercise of delegated legislative power by the Government. Neither does it affect the type of organisations to which immunities may be granted. The Bill will limit the delegated legislative power conferred by Part VIII of the 1967 Act by providing that the Government may, by order, only confer those inviolabilities, exemptions, facilities, immunities, privileges and rights conferred upon, or afforded in relation to sending, states or missions under the Vienna Convention on Diplomatic Relations. Section 3 will insert this limitation into section 40 of the 1967 Act, while section 4 will insert it into section 42A of the amended 1967 Act. Section 5 will insert the limitation into section 43.
Section 6 will provide that every Government order which has been made under Part VIII of the 1967 Act and is in force immediately before the passing of the Bill shall have the same statutory effect as if it were an Act of the Oireachtas. To date, 45 orders have been made under Part VIII in relation to 37 international organisations or bodies. Of these orders, 29 conferred privileges and immunities on 23 international organisations and bodies, while 16 merely designated a body or organisation under Part VIII in relation to 14 organisations. Some 25 relate to international agreements to which the State or Government is or intends to become a party, as provided for in section 42A. Some 19 relate to an international organisation or body to which the State or Government is or intends to become a party, as provided for in section 40. One relates to an international judicial body, as provided for in section 43.
The privileges and immunities conferred by these orders are of the nature of immunities and privileges afforded in relation to the Vienna Convention on Diplomatic Relations, as I have outlined. Once again, the Bill will do no more than insert into the 1967 Act a constitutionally required limitation on a legislative power delegated to the Government. Diplomatic immunities are essential to the effective conduct of international relations and the work of a wide range of international bodies. It is very important that the grant of immunities to such bodies, often in pursuance of Ireland's international obligations, be in accordance with best legislative practice.
Section 1 agreed to.
Amendment No. 1 not moved.
NEW SECTION.
I draw the attention of members to the following typographical error in amendment No. 2. It should read, "In page 3, before section 2, to insert the following new section".
I move amendment No. 2:
In page 3, before section 2, to insert the following new section:
"2.—The Principal Act is amended by substituting the following for section 39:
39.—In this Part—
"organisation to which this Part applies" means an international organisation, community or body standing designated for the time being by order under section 40 of this Act;
"Vienna Convention" means the Vienna Convention on Diplomatic Relations done at Vienna on the 18th day of April, 1961, the text of which in the English language is set out for convenience of reference in the First Schedule to this Act.'.".
The purpose of the amendment is to make it clear that the text of the 1961 Act is set out for convenience of reference and in the English text only and to make the wording of the side notes tidier.
In response to the Minister of State, while we should be able to dispose of the Bill without much detail, it is important to realise it is not just a matter of tidying up or drafting. Because a particular section was found to be unconstitutional, we are putting an unconstitutional practice right. What was unconstitutional was the assumption to which the Minister of State referred in his introductory statement as to the powers of delegation to Governments and Ministers. I will come to my quibbles about the drafting process later but, first, I will make some introductory remarks.
I suggest the Minister return to the phrase "were all orders made". Does this include orders made and discontinued? In a preceding reference to the orders that have been made but may not still be in place upon which a status is being conferred, there is another problem, in respect of which reference is made to what is empowered by an Act and what is empowered by an order. To the lay person, it is either one or the other. I hope I am being courteous in forewarning the Minister of State of difficulties that will arise later.
My question relates to the layout of the Bill. If one amends something by substituting text, this suggests the notes to the replaced text can be dropped. I am stating this now for discussion purposes but I also refer to two points I will make later. What I am suggesting is that a procedure used in the preparation of legislative instruments suitable for financial matters may be followed by something which requires different and more flexible treatment.
First, it is important to point out there has been no finding of unconstitutionality with regard to the Bill. The purpose of the Government in introducing it is to tidy up or redraft because of concerns expressed by the Attorney General that it may be safer to clarify the lines of Executive authority. It is better to have the matter specified and made clear in the text of the legislation, rather the Government having a discretionary power to add functions or immunities.
A point on which the court held.
This is good housekeeping on the part of the Government and the Attorney General. From the advice of the Attorney General to the Government, there is no issue with regard to constitutionality. Best practice of how to handle legislation dictates that it should be tidied up in this fashion.
I should have stated an action without such specification would be constitutionally fragile in view of the decision taken.
That is an eminent description. The amendment tabled by the Labour Party would change the wording set out in the First Schedule to: "the text of which in the English language is set out for convenience of reference in the First Schedule to this Act". It seeks to change the wording to that more commonly used in including the text of international conventions in Bills. One can understand the reasoning behind this. However, as the amendment would substitute a new section 39 in the principal Act of 1967, on balance, it is considered preferable to adhere to the wording used elsewhere in the principal Act, for example, in section 5. This approach ensures minimum disruption to the principal Act and maintains consistency. Accordingly, the Government opposes the amendment.
It is a conservative interpretation and I wish a more flexible approach could be adopted. I do not intend to press the amendment but the conservatism of drafting in this regard is suitable for finance Bills, not for a Bill in respect of which actions derive from policy. I would like to have the full amount of clarity in what is presented in an amended text.
Does the Deputy wish the legal office to communicate directly with him on the issue? He would then be aware of the practices followed. I have accused it of being conservative at times.
The legal officer will be aware of my views on the matter. A more flexible approach could be adopted.
Amendment, by leave, withdrawn.
Sections 2 to 5, inclusive, agreed to.
NEW SECTION.
Amendments Nos. 3 to 5, inclusive, may be discussed together.
I move amendment No. 3:
In page 4, before section 6, to insert the following new section:
"6.—Every order made under Part VIII immediately before the passing of this Act is hereby confirmed save to the extent that such order has been revoked prior to that date.".
Both the Labour Party and the Government have proposed amendments to section 6. The Labour Party's amendment would involve replacement of the section with a differently worded provision which, in the main, would have the same effect. The main difference in the amendment is that whereas the Bill deals with the matter by way of the insertion of an additional section into the 1967 Act, the amendment would be a stand-alone provision in the Bill. Given that section 6 affects the status of orders made under Part VIII of the principal Act, the Government favours the additional section being inserted into the 1967 Act. In this regard, it is acting on the advice of the Parliamentary Counsel. As a result of the Government's amendment, the amendment proposed by the Labour Party would be inappropriate.
I will introduce amendment No. 4, the purpose of which is to prevent the otherwise inevitable requirement for further primary legislation inthe near future. Amendment of orders after enactment of the Bill would entail primary legislation. As such, it is desirable to address the matter at this stage. As a result of changes to the organisational structure of INTELSAT, the International Telecommunications Satellite Organisation; Eutelsat, the European Telecommunications Satellite Organisation, and the European Radio Communications Office, amendments are required to three existing orders. As the amendment of such orders after the Bill's enactment would require primary legislation, the Government proposes to revoke the three orders in question by the insertion of amendment No. 4 which provides that the following three orders are revoked: the INTELSAT (Designation of Organisation and Immunities of Organisation and its Officers and Employees) Order 1972, SI No. 39 of 1972, amended by INTELSAT (Designation of Organisation and Immunities of Organisation and its Officers and Employees) (Amendment) Order 1993, SI No. 191 of 1993; the European Telecommunications Satellite Organisation (Eutelsat) (Designation and Immunities) Order 1993, SI No. 193 of 1993; and the European Radio Communications Office (Privileges and Immunities) Order 1994, SI No. 186 of 1994.
The Department of Communications, Marine and Natural Resources has prepared three new orders which it intends to bring to the Government after the Bill's enactment. The Long Title to the Bill, as initiated, is "AN ACT TO AMEND THE DIPLOMATIC RELATIONS AND IMMUNITIES ACT 1967". As a result of the Government's amendment to section 6, upon the advice of the Parliamentary Counsel, the Long Title to the Bill will read, "AN ACT TO AMEND THE DIPLOMATIC RELATIONS AND IMMUNITIES ACT 1967 AND TO PROVIDE FOR RELATED MATTERS". The organisations in question have changed status as they were state-owned; they now operate in the private sector. This necessitates a change in language.
The Minister of State is alluding somewhat to the problems addressed in my amendment. As I mentioned, there are a number of points to be made. The purpose of the amendment is to avoid the anachronism of inserting a new section in the 1967 Act to confirm orders made between 1967 and 2005. It would be simpler to have a separate and free-standing section to confirm those orders. The difficulty I have with the Government amendment is that the explanatory memorandum which states best legislative practice requires that the delegation of legislative power be limited by a clear statement of principles and policies to be followed in the exercise of that power. I agree with this; it is not a matter of good practice but a constitutional requirement, as the court held in a related case.
The Minister of State mentioned one of my reasons for being dissatisfied, in referring to how proper it is to state an order has the same effect as an Act. An order is not an Act. The usual formula used to address this in legislative drafting is to confirm an order made. My amendment would achieve this.
The other problem which I mentioned and which the Minister of State is struggling to address relates to the language in force immediately before the passing of the Bill. This raises the issue of orders which have been made but which may have been discontinued and, as such, not in force before the passing of the Bill. If they were outside the powers of the Diplomatic Relations and Immunities Act 1967, as the Attorney General would have advised, they would not have been in force. What then will be the legal effect of section 6? Does it purport to give legal effect to that which is legally fragile? That is why the reference to best legislative practice in the explanatory memorandum is a constitutional requirement.
When did the Minister of State or the Department become aware that the legislation was defective and how many orders have been made since they first became aware of this? How many orders have been made under the defective legislation?
I do not think the Attorney General's advice was that the legislation was defective. He merely stated it would be preferable to rectify this anomaly or constitutionally fragile provision in line with best practice.
How many orders have been made since the question was raised?
I must inquire about the matter. The Office of the Attorney General provided legal advice on the issue in 1999, in which year a Supreme Court decision clarified certain issues. While consideration had been given to the matter and preparatory work carried out, it was considered prudent to await the Supreme Court ruling in DPP and Anor v. Leontjava, which decision was delivered in June 2004, before bringing the Bill before the Oireachtas as the judgment further clarified the relevant issues. Two designation orders were made in 2002. A further order granting immunity was made in 2004.
Deputy Higgins asked whether it was permissible under section 6 to bestow an order that would have the same effect if it were an Act of the Oireachtas. In DPP and Anor v. Leontjava the Supreme Court held that it was constitutionally permissible to provide that a statutory instrument already in force had statutory effect as if it were an Act of the Oireachtas. I can provide the Deputy with a copy of the judgment.
It was not one of the Supreme Court's best decisions but who am I to comment?
The Deputy is becoming an armchair lawyer.
It is important to say at this stage that any of us who has tabled amendments or raised questions has no difficulty with extending the full list of immunities referred to in both the explanatory memorandum and the Minister of State's speech to various organisations. We merely aim to achieve certitude. It is best to have sections in legislation that explicitly specify both the outer limit and main purpose of such actions and orders. I accept that this is the intention of the legislation but we differ on the presentation and its achievement. It would be much better to have it set out clearly. There is nothing wrong with suggesting the Diplomatic Relations and Immunities Act 1967 was passed at a time when Governments and Ministers believed it was possible to make orders in a much looser fashion.
The Deputy is correct. We are trying to provide for an interpretation of what is already a constitutional requirement.
Amendment, by leave, withdrawn.
SECTION 6.
I move amendment No. 4:
In page 4, to delete lines 42 to 45 and substitute the following:
"‘50.—(1) Subject to subsection (2), every order under this Part in force immediately before the passing of the Diplomatic Relations and Immunities (Amendment) Act 2005 shall have statutory effect as if it were an Act of the Oireachtas.
(2) The following orders are revoked:
(a) the INTELSAT (Designation of Organisation and Immunities of Organisation and its Officers and Employees) Order 1972 (S.I. No. 39 of 1972) (amended by INTELSAT (Designation of Organisation and Immunities of Organisation and its Officers and Employees) (Amendment) Order 1993 (S.I. No. 191 of 1993));
(b) the European Telecommunications Satellite Organisation (Eutelsat) (Designation and Immunities) Order 1993 (S.I. No. 193 of 1993); and
(c) the European Radio Communications Office (Privileges and Immunities) Order 1994 (S.I. No. 186 of 1994).’.”.
Amendment agreed to.
Section 6, as amended, agreed to.
Section 7 agreed to.
TITLE.
I move amendment No. 5:
In page 3, line 8, after "1967" to insert "AND TO PROVIDE FOR RELATED MATTERS".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.