I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to the meeting, the purpose of which is to consider Committee Stage of the International Criminal Court Bill 2003.
SECTION 1.
International Criminal Court Bill 2003: Committee Stage.
I move amendment no. 1:
In page 5, line 26, to delete "Court" and substitute "Jurisdiction".
I welcome the Minister and his officials. This Bill is important and relevant legislation, considering the amount of atrocities currently being committed around the world.
Amendment No. 1 relates to the extent and the appropriateness of the Title of the Bill. The purpose of the Bill is not to deal with the International Criminal Court alone and it has a wider jurisdiction. It would be best to reflect the latter in the Short Title of the Bill. Part 2 of the Bill also gives to Irish courts the jurisdiction to deal with offences such as genocide, crimes against humanity and war crimes. To have the legislation described simply as an "International Criminal Court Bill" would appear to be restrictive and curtailing of its intent and jurisdiction. Perhaps the Minister will consider having a more descriptive and appropriate Title that would reflect the essential and broader issues covered by the legislation.
I thank the Deputy for tabling this amendment, which we have examined. A number of other countries have legislated along similar lines and, among the common law countries, broadly described, the UK, Australia, South Africa and Malta have used the phrase "International Criminal Court Act". To some extent, we are wise in describing the legislation similarly and not referring to jurisdiction. Jurisdiction could arise in other contexts, and I wish to have this Bill focused on the International Criminal Court. I appreciate the Deputy's comments but I am following international precedent in referring to the legislation as the International Criminal Court Bill, which will become the International Criminal Court Act. I prefer to leave it as reflecting the titles used by the previously mentioned countries, although it is a matter of choice. I do not find a compelling argument to change the wording.
I appreciate the Minister's comments regarding broader issues being involved. If the general thrust of implementation of this type of legislation is to use the term "International Criminal Court Bill", it would be beneficial to have a fairly standard title.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
It is proposed to take amendments Nos. 2, 6, 24 and 28 together.
I move amendment No. 2:
In page 5, subsection (1), between lines 31 and 32, to insert the following:
"‘Act of 2003' means the European Arrest Warrant Act 2003;".
This amendment relates to the interpretations section of the Bill, defining the 2003 Act. The other three amendments will add a reference to the European Arrest Warrant Act 2003 in the relevant places in the Bill, namely, sections 2(2), 18(6) and 30(5). These amendments arise from the enactment of the European Arrest Warrant Act 2003 since the publication of the Bill. The intention is that in places where there is a reference to the Extradition Act in the Bill, there will also be a reference to the European Arrest Warrant Act. This reflects the fact that surrender between EU member states is now exclusively governed by the European Arrest Warrant Act rather than the Extradition Acts. I commend the amendment to the select committee.
I have no difficulty with the amendment, which appears to be sensible in that it addresses the requirement to catch up with other legislation passed in the meantime.
The fact that we have been overtaken by other legislation passed in 2003 is indicative of how long we have been dealing with this Bill.
That is the problem with being a serial legislator.
The Minister serially introduces legislation, which is different from getting it through the House. I recognise, however, that having legislation passed is not easy in light of the logistics of getting all Government legislation through the House.
On amendment No. 2, it is clear that the phrase "Act of 2003" refers to the European Arrest Warrant Act 2003. On amendment No. 6, is it appropriate to include the words "the Act of 2003" twice in the sentence "surrender of a person in accordance with the Extradition Acts or the Act of 2003 or the Act of 2003"? Perhaps this is the norm. My point is that in light of the number of Bills enacted in 2003 and the fact that few references will be made to the European Arrest Warrant Act 2003 in the legislation, would it not be preferable to insert the Short Title, rather than the words "Act of 2003", in the amendment?
Let us make the amendment now and if we consider that the insertion of the Short Title would make the legislation clearer, we might make a further amendment on Report Stage.
Regarding the inclusion of the phrase "in accordance with the Extradition Acts or the Act of 2003", the Extradition Acts no longer apply because they have been superseded by the 2003 Act.
The 2003 Act supersedes completely the old extradition law in the case of those member states of the European Union that have ratified the framework decision. I understand all member states have now done so. As far as Ireland is concerned, the Act applies to all offences committed before and after its enactment.
It is not necessary to include a reference to the particular circumstances that have developed, namely, that the European Union is now different from the rest of the world. This relates to an international treaty. I suppose that issue is covered in the Bill.
While I do not envisage any complication arising, we will re-examine the text before Report Stage to ensure that is the case.
Amendment agreed to.
Amendments Nos. 3 and 4 are related and may be discussed together by agreement.
I move amendment No. 3:
In page 6, subsection (1), to delete line 1.
The purpose of these amendments is to move the reference to "ICC offence" in the definition section in order that the section will be in correct alphabetical order. Somehow this reference appeared at the top of page 6 when it should be lower down.
Amendment agreed to.
I move amendment No. 4:
In page 6, subsection (1), between lines 14 and 15, to insert the following:
"‘ICC offence' has the meaning given to it by section 9(1);”.
Amendment agreed to.
I move amendment No. 5:
In page 6, subsection (1), line 25, to delete "action," and substitute "action and".
If the amendment is accepted, the provision in section 2 will read: "choses in action and any other intangible or incorporeal property". The amendment makes the provision more readable.
My recollection of "choses in action" from my legal studies days is now a little rusty. Will the Minister refresh my memory of what this involves?
In my rusty recollection "choses in action" falls into two categories, legal and equitable. It is a right enforceable only by action such as a debt. It is not tangible property such as a physical object. A contractual right might be covered by "choses in action".
Amendment agreed to.
I move amendment No. 6:
In page 6, subsection (2), lines 40 and 41, to delete all words from and including "extradition" in line 40 down to and including "Acts" in line 41 and substitute the following:
"surrender of a person in accordance with the Extradition Acts or the Act of 2003".
Amendment agreed to.
Question put: "That section 2, as amended, stand part of the Bill."
In this section "prison" is defined as "any place for which rules or regulations may be made under the Prisons Acts 1826 to 1980 or section 13 of the Criminal Justice Act 1960;". Is there not more up-to-date legislation?
I will check that there is not a later broader power to make rules for prisons. I have a sneaking suspicion the Deputy is right.
Question put and agreed to.
SECTION 3.
I move amendment No. 7:
In page 7, between lines 27 and 28, to insert the following subsection:
"(3) No amnesty, pardon or similar measure of impunity by any state applying to an ICC offence shall be recognised by Ireland.".
This section deals with the interpretation by the court of the Act and statute. I am considering the possibility of providing for loopholes, although I am not sure whether, if there is such a loophole, we can close it. We need to discuss whether we should watch out for the possibility of another state opening a loophole by way of an amnesty, pardon or measure of impunity. We should provide that we would not recognise any such amnesty, pardon or measure of impunity.
I have long supported the work of the International Criminal Court. However, some states which signed up to it in Rome, not least the United States, subsequently looked for wiggle room and have not ratified the treaty. I am concerned that some states might use this as a way out.
I thank the Deputy for tabling the amendment and note his concern that the international community should hold those responsible for grave violations of human rights accountable for their actions and challenge the sense of impunity under which some individuals in areas of conflict often act due to the chaos in the domestic legal and political system. The issue of a pardon and amnesty is a complex one involving the terms of the Rome statute and emerging customary prohibition on amnesties for serious international crimes. It also has implications for third country jurisdictional issues. I am prepared to examine the proposal between now and Report Stage when I will bring the outcome of that examination before the House.
I do not wish to add much to this discussion, but will the Minister tell us where we stand in regard to the United States at this point? Does it remain as opposed as ever to the International Criminal Court?
That is a leading question. As I do not want to say, off the cuff, where the United States has got to on the matter, I will have to come back to the Deputy on the issue. I do not know what the most up-to-date position is, although I know that members of Congress have grave reservations about submitting to the jurisdiction of the International Criminal Court. This is a subject of deep political controversy within the United States. The attitude of European Union member states is to proceed with their support for the court, regardless of the attitude taken by America in the long term.
The reason I ask the question is, obviously, that there are so many assertions nowadays concerning Guantánamo Bay and the way in which the United States is handling prisoners of war and others. In terms of crimes against humanity, it certainly could be relevant and have implications for our foreign policy and other matters, including the use of Shannon Airport if, in fact, people are being taken from this jurisdiction, or if this jurisdiction is being used as a hub to fly people from certain countries — whether it is Iraq, Afghanistan or elsewhere — to a country that does not recognise the International Criminal Court. It is an important issue for us to raise and address. Perhaps the Minister may not have the answer to hand, but, in addition to the United States, what other countries are in the process of transposing this measure into law?
With regard to the issue raised by the Deputy, a couple of points should be made firmly. First, there is no legal basis whatsoever for the transport of anybody in custody through Irish territory, other than by extradition transit or the transfer of sentenced persons agreements which do not apply to the situation to which the Deputy is referring. Therefore, it is unlawful for anyone to attempt to bring somebody through Irish airspace or to land on Irish territory with a prisoner or someone in custody other than in the two aforementioned circumstances which are not applicable to the situation envisaged by the Deputy. Second, the Government has been repeatedly assured by the United States Government that Shannon Airport is not being used for the transfer of any persons in custody and that any flights of US state aircraft through the airport are not used for the purpose of transportation of people in custody in the circumstances described.
Third, as regards the use of Shannon Airport generally, it should be stated the present operations in Iraq by member states of the United Nations have the unanimous backing of the UN Security Council and are not, even arguably under international law, invalid. They have a full mandate from the United Nations. Therefore, the suggestion Ireland is in some sense in breach of its obligations under international law is wholly without foundation. I just wanted to say that because it has been suggested the operations in Iraq by UN member states do not have a UN mandate; they most certainly have.
Can we leave the matter there, although it is an interesting discussion?
I will not extend it much further, but I have one last point to make. There is a problem in that we do not have any mechanism for checking the interior of US aeroplanes. Many US aircraft travelling to Iraq stop at Shannon to discharge their cargos of US soldiers, who buy duty free goods and do whatever else. However, other aircraft remain on the runway and — good, bad or indifferent — are not checked by our officials. The Government is relying entirely on the assurances of the US authorities. Nevertheless, people are travelling from Afghanistan and Iraq to prisons in the United States and the only apparent route by which they do so seems to be through Irish airspace.
I do not want to be——
Am I correct in stating that the Minister said that the transfer of prisoners through Shannon is unlawful under Irish law?
Except under the two circumstances to which I referred.
He is convinced beyond a shadow of a doubt that no prisoners are being carried through Shannon. That is the Government's position.
It is unlawful and the United States Government has repeatedly assured us that it has not acted unlawfully by using Shannon for the transportation of prisoners in the manner suggested by the media. We accept its word, as a friendly state, that it is not breaching Irish law. That is the position of the Government.
There are no checks.
If there was any reason to believe that was not the case, Ireland's recourse would be to refuse to allow flights of that kind to pass through Shannon. However, we have no reason to discount the assurances we have been given.
With regard to aircraft in Shannon, we are not free, under international law, to poke about US naval vessels in our waters and the same applies to aircraft belonging to or chartered by the US Government. Gardaí in Dún Laoghaire could not have searched the USS John F Kennedy for people being held illegally.
The Minister's remarks are important in terms of knowing our position with regard to international law. We rely to a large degree on assurances from the US, which has a friendly relationship with us, and there is no evidence available that would allow us to rebut those assurances.
I would be more assured if the United States had not jettisoned its support for the International Criminal Court, which is the subject of today's discussions. With many others, the US signed up for the Rome treaty in 1996 but, as it clearly has no intention of ratifying the treaty, is not accepting the jurisdiction of the International Criminal Court. It has been suggested that there are concerns in the US that President Bush could be brought before the court but perhaps that is all the more reason it should sign up. That is a part of the reassurance jigsaw which will remain outstanding until such time as the US ratifies the International Criminal Court. We should complete our own ratification process by passing this Bill.
I will withdraw the amendment on the understanding that the position will be further examined before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 7, between lines 32 and 33, to insert the following subsection:
"(6) There shall be a duty on a court or any agency of the State, including but not limited to, an Garda Síochána and the Defence Forces, to co-operate with the ICC.".
We must make it clear that every agent of State, including the courts, the Garda Síochána and Defence Forces, has a duty to co-operate with the ICC. I am not sure such a provision is absolutely necessary but I felt it might be useful to include it as part of our ratification of the legislation. It might also provide total confirmation on us, as the Legislature, of the expectation for absolute co-operation on the part of every agency of the State with the International Criminal Court. I am merely putting the proposal forward for discussion.
I appreciate the sentiment behind the amendment. The legislation, when enacted, will place statutory powers and duties on the Minister of the day as set out, for example, in sections 16 and 18. The Bill, in sections 18 and 21, imposes such powers and duties on the High Court and, in sections 22 and 37, on the Garda Síochána and Garda Commissioner, respectively. I regard those provisions as serious obligations and responsibilities of office that must be discharged in a conscientious and considered manner, under the Constitution, in accordance with the letter, terms and spirit of the legislation. In the circumstances, the general proposition encapsulating Deputy Jim O'Keeffe's amendment is not necessary.
I support amendment No. 8 and believe it to be an important provision that would add weight and depth to the legislation, particularly in terms of overall co-operation with the ICC. The debate on the International Criminal Court is important in international terms. We must, when dealing with this issue, bear in mind that the stronger this legislation is the more effective it will be and the more respect people will have for international law.
I appreciate Deputy Finian McGrath's support. I tabled the amendment on the basis that it may be necessary. If I have interpreted the Minister's response correctly, he accepts the spirit of the amendment but believes that it is not necessary because the issue is covered by specific provisions in the sections mentioned. I will re-examine the Bill to clarify whether the sections referred to by the Minister deal adequately with the issue. If not, I will resubmit the amendment on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 7, between lines 32 and 33, to insert the following subsection:
"(6) Identification and freezing of assets relating to an ICC offence shall be carried out in accordance with the provisions of the Criminal Assets Bureau Act 1996.".
This is a proposal to include a further subsection specifying that the identification and freezing of assets relating to an ICC offence shall be carried out in accordance with the provisions of the Criminal Assets Bureau Act 1996. Again, I am merely putting this issue forward for discussion. I believe that the identification and freezing of assets, as it arises in the context of issues before the International Criminal Court, is an important issue. While we are fortunate to have an effective agency like the Criminal Assets Bureau, I felt it appropriate to specifically highlight a role for it in terms of the identification and freezing of assets. I believe we should include any provision that might strengthen the legislation. I am interested to hear my colleagues' comments on the matter.
I support the amendment. Last year, we amended the jurisdiction and terms of the Criminal Assets Bureau Act 1996 and Proceeds of Crime Act 1996 to cover transnational and domestic crime. This also appears an appropriate mechanism and provision for dealing with criminally gained assets. Given that our legislation is on a par with, if not better than, what is available elsewhere, we should be inserting in it that this is the appropriate way forward and perhaps some other countries might also take on board our proposals in respect of the Criminal Assets Bureau.
It is true that our forfeiture proposals are well in advance of most states. The significant difference is that there are procedures by way of civil forfeiture under the Proceeds of Crime Act 1996 and the Criminal Assets Bureau Act 1996. However, there are also procedures that are part of the criminal justice system. The relevant legislation regarding the seizure and freezing of assets post-conviction is the Criminal Justice Act 1994. In regard to ICC and the position internationally, the post-conviction criminal procedure, rather than the Irish civil procedure, is the norm.
Requests under Part 4 of the Bill follow a two-stage process. First, a request is made for the freezing of assets and where there is a subsequent ICC order for enforcement of the freezing order, a further request is received for the confiscation and forfeiture of the property. Where the ICC requests the enforcement of the order, it is enforced as though it were an order of the High Court for enforcement, the latter having first taken into account any representation by interested third parties. There are also provisions in the legislation regarding imprisonment for non-payment of outstanding amounts, the appointment of a receiver, the management of assets that are part of a bankruptcy and other technical matters associated with enforcement.
In the Bill, we are dealing with a criminal confiscatory procedure and not a civil confiscatory procedure such as that which Ireland operates under the Criminal Assets Bureau. It is that procedure which differentiates Irish confiscation law from the international norm. Whenever European legal professionals look at the Irish Criminal Assets Bureau, they view it with a sense of wonder. It is so imbued in them that what the bureau does can only happen after conviction that they wonder how it can be done in Ireland without conviction. They do not really understand the Supreme Court jurisprudence which is based on the proposition that if one is in possession of the proceeds of crime, they are not one's legal property and that, therefore, depriving a person of such proceeds is not a punishment but simply a parting of company, on his or her part, with something he or she ought not to possess and that this does not require a criminal conviction in the first instance. European legal professionals are amazed by this.
Has the Minister not succeeded in persuading them?
No, but we persuaded the United Kingdom to make the considerable intellectual effort required to see the merits of our approach. Many in legal profession across Europe have to make that jump yet.
I support amendment No. 9. As the Minister stated, our confiscatory procedures are well ahead of those in other states and this has been acknowledged internationally. I strongly support the Criminal Assets Bureau. Recent events indicate that the operating mode of criminal gangs is changing and that such gangs have no outward displays of wealth and are dealing only in cash. We need to be continually vigilant to the change of tactics on the part of criminals in response to legislation. Criminals adapt when they know that their assets will be confiscated. We have a collective responsibility to monitor the position.
The exposition of the continental theory in respect of this proposition is interesting. It shows that the practical approach adopted in Ireland is much more effective. I take the point and I will examine the matter further. I will not press the amendment.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
I move amendment No. 10:
In page 8, subsection (2)(c)(ii), line 21, to delete “or conditions under which” and substitute “by which, or conditions under which,”.
This amendment inserts the words "by which" so that the provision in section 4 will now read, "the Minister is of opinion that there are no means by which, or conditions under which, the information could be disclosed". It was slightlyineloquently and inelegantly phrased in itsoriginal form.
Amendment agreed to.
I move amendment No. 11:
In page 9, between lines 12 and 13, to insert the following subsection:
"(6) Any request mentioned in subsection (1) and any supporting or related documents shall constitute official information within the meaning of the Official Secrets Act 1963.”.
This amendment seeks to insert a new section 4(6) to ensure that any information requested by the International Criminal Court and any documents relating to such information are treated as documents under the Official Secrets Act 1963. The provision will allow the confidentiality requirements and subsequent penalties arising from the 1963 Act to be applied to information being forwarded, or considered for forwarding, on foot of a request from the ICC. As currently drafted, the section makes no provision for punishment for any breach of confidentiality. Ireland takes its obligation to co-operate with the ICC seriously, which makes it necessary to provide every protection to requests received from the court and subsequent information sent to it. Such documents may contain sensitive information on witnesses and victims who need to be given the utmost protection and anonymity prior to any proceedings.
Some Deputies will ask why we do not amend the Official Secrets Act, which is somewhat old-fashioned. While that is true, the Act represents the only code that currently exists in the area and is the only practical way of imposing a proper confidentiality obligation in respect of information sought by the court and transmitted to it. We are satisfied that some degree of confidentiality is necessary and that information cannot be simply thrown into the public domain merely because the ICC has requested it.
: While I understand the need for confidentiality, we must question, in this age of accountability, things that are being pushed under the carpet. If we did not provide for this, what would be the effect on the documentation received? It would hardly be accessible under freedom of information. Why would it not otherwise be dealt with on a confidential basis? My intention is not to oppose the proposal but to raise a query before we accept it.
The Official Secrets Act is listed on the schedule of Government Acts that are due to be revamped. Given the reference in the subsection to the 1963 Act, will its provisions be out of date in 12 months? The provisions of the Official Secrets Act are limited to certain categories of person and employee. How broadly can it establish what constitutes official information and make it confidential?
The Official Secrets Act was the subject of a 1997 review by the then Select Committee on Legislation and Security. The review recommended the repeal of the Act and its replacement with a new, more narrowly focused statute that would criminalise the unauthorised disclosure of only a limited category of official information, the disclosure of which would be prejudicial. The select committee was of the view that the categories of information to be covered by the new legislation ought to be limited to the security and defence of the State, crime and criminal law enforcement and the protection of the life or safety of persons. The review took place at the height of what EU Commissioner McCreevy refers to as the OTA, openness, transparency and accountability, wave. While Deputy Costello is correct to state that a new statute is among the programme measures and on the list of promised legislation, I am not sure we should be so radical in our approach to the Official Secrets Act. A Government can use information maliciously just as much as it can in the interests of accountability. It would be a radical step to allow every public servant who has access to information to throw it to a friend in the press in any circumstances, as long as it did not affect the security of the State, criminal law enforcement, the protection of a life or safety of a person. Some are entitled to deal with the State on the basis that their affairs will not be thrown into the public domain to an interested journalist by those at the receiving end of the information. We must examine the philosophy of how we deal with the affairs of individuals vis-à-vis the State. One can make life very difficult for people by making public their dealings with the State.
Freedom of information legislation allows certain documents that can be requested to come into the public domain. Should we make every public servant into his or her own freedom of information officer? Should we give him or her the right to throw any information into the public domain if he or she so wishes for whatever reason? As the Bill stands, the disclosure of information would carry no penalty. In addition, the information could be the subject of a freedom of information request. I want the International Criminal Court to be able to deal with the State on the basis that its requests and the material given to it will not prima facie be thrown into the public domain at the whim of anyone who happens to know about the matter.
I am in sympathy with the thinking of the Minister in a general sense. When I practised as a lawyer, confidentiality was important. There must be scope to make contact with State agencies on a confidential basis. Freedom of information legislation is in place. We must be careful because there could be a situation where matters would be swept under the carpet. At the same time, however, we must be able to do our business with the State where confidentiality is necessary. I accept the point that, with regard to this provision, it seems inappropriate. There is an omission in the Bill if an application for information from the International Criminal Court can be immediately exposed by a freedom of information request. In some sense, I support the proposal.
It is one of these issues that one supports but one must also ask what safeguards are in place. Once information comes within the terms of the Official Secrets Act, no one knows what has passed between agencies, in this case the International Criminal Court where serious matters such as crimes against humanity are involved. The difficulty is that when one states every matter to do with it comes within the terms of the Official Secrets Act, it is not subject to being raised in the Dáil or through a freedom of information request. It is also not subject to anyone having access to decisions taken, information on which they were based and on whether the judgment was correct. Is there another way that would be less comprehensive and restrictive on access to information? I have reservations that it would be covered by a total ban on official information coming into the public domain in any form. We must be able to verify whether matters are conducted in a proper fashion. There is no transparency or accountability in that respect. Will we take the good word of the Minister or those operating behind the scenes without any opportunity to verify the process?
We must examine this issue afresh in the light of the recasting of the official secrets legislation. The phrase "Official Secrets Act" sounds slightly forbidding. When the Act is read, it means any information in the State, even a telephone number, address or statistical fact, comes within the broad definition of "official information" for the purposes of the Act. The disclosure of such information is prohibited. I have a slight worry that the 1997 report went too far in the opposite direction. We must have regard for privacy, the subject of a report that will be brought before the Government very soon. We should also examine the operation of the Freedom of Information Act 1997 to see how a balance can be struck. If a politician in this room makes an application for a grant to install a stairlift for his or her aged mother, for example, it will be considered a fact. If a civil servant dealing with the matter decides that a newspaper might like to know about it, that is a different issue.
Does the Minister have an aged mother?
Unhappily, my parents are deceased. I am making a point about simple matters. The fact that the security of the State or the life of an individual is not at issue ignores the idea that one is entitled to carry out certain private actions without being seen in the public domain. It is not the function of public servants to engage in the broadcasting of information they find of interest or potentially interesting to the broader public. This is not the day to discuss that issue which should be revisited on another occasion.
My concern is we have an all-embracing provision with regard to the Official Secrets Act 1963. While there is recognition that some matters must be dealt with privately and everything cannot enter the public domain, a total lack of accountability or scrutiny of any mechanism where decisions on information are taken is problematic.
I may have misled the committee in one respect. The Freedom of Information Act 1997 applies to matters covered by the Official Secrets Act 1963. All information in the possession of the State, as defined in the Act, is covered by the Official Secrets Act 1963. The Freedom of Information Act 1997 affects the vast majority of official information, the disclosure of which, prima facie, is prohibited by the Official Secrets Act 1963.
The Minister is entering difficult territory.
Virtually any information in the hands of the State is official information and covered by the Official Secrets Act 1963. It is a summary offence for a public servant to disclose such information. However, the Freedom of Information Act 1997 covers most of this territory, with exceptions relating to confidentiality and a number of statutory provisions such as deliberative process and similar matters. The mere fact that information is covered by the Official Secrets Act 1963 does not mean it is inaccessible under freedom of information legislation.
It would be an offence for a public servant to disclose the information.
However, under freedom of information legislation——
This would not be excluded from the operation of FOI legislation on request from the outside.
Is this an Irish solution to an Irish problem?
It is at the moment. When freedom of information legislation was introduced, the official secrets legislation was not integrated into it. The two pieces of legislation are in one sense competing. The freedom of information law overrides the official secrets legislation.
Will a remedy to this form part of the revamping of the official secrets legislation?
The two concepts will have to be married more appropriately.
Is it possible to agree on the issue for the moment?
What the Minister is proposing is very comprehensive. I would like to examine situations where there would be no mechanism for questioning or scrutinising decisions on matters of enormous import in a domestic and international context. If an issue were to arise with regard to the International Criminal Court and decisions were made in this jurisdiction, what mechanism would be used to determine its nature, even in a general or sketchy fashion? Would it be possible to obtain information on it? If the issue is covered by the Official Secrets Act, will the Minister simply indicate that this is the case? Will no information be divulged if a person asks a bona fide question regarding matters about which concerns may arise in terms of procedures, decisions made, the information on which they were made and so forth? I am concerned that the Minister's proposal amounts to throwing a blanket over any official information or documents related to the legislation.
I do not see the issue exactly as the Deputy does. For instance, nearly all information in the Department of Justice, Equality and Law Reform is official information for the purposes of the Official Secrets Act, yet I am asked questions about such matters every day in the Dáil. The Deputy could table a question asking whether I had received a letter from a particular person on a particular issue and, if so, what I proposed to do about it. I usually answer such questions as required. The difference in this regard is that a public servant in the Department is not able to telephone the Deputy and gratuitously inform him that the Minister received a letter this afternoon, the contents of which he will not believe, the reason being that such matters are official information. Regardless of whether this approach is right or wrong, it is current policy. Under the Freedom of Information Act and the accountability and supervisory measures in place in the context of the Official Secrets Act, official information for the purposes of the Act is usually revealed, provided there is no good reason not to reveal it.
Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."
I am attending on behalf of my colleague, Deputy Ó Snodaigh — who is undergoing an operation — in order to enable him to move amendments on Report Stage.
Despite concerns about the delay in taking Committee Stage, Sinn Féin welcomes the Bill and wants it passed as soon as possible. It is my party's intention to table amendments to section 4 to give effect to the recommendation of Amnesty International that the Bill incorporate mandatory language to make it a duty to co-operate with the International Criminal Court and abide by a decision of the assembly of state parties or Security Council arising from a case about which the State has national security concerns. Perhaps the Minister will guide me in this respect, as it is possible such amendments should be tabled to section 3.
The introduction of a mandatory obligation of the kind to which the Deputy refers and other Deputies raised can happen virtually anywhere in the Bill. The select committee should note that the Deputy has signalled an intention to raise the matter on Report Stage.
Question put and agreed to.
Section 5 agreed to.
As Committee Stage has not been completed, I propose that the select committee convene to complete its consideration of the Bill on another date to be agreed with the Minister's office, party spokespersons and convenors. Is that agreed? Agreed.
Progress reported; Committee to sit again.
The select committee adjourned at 10.30 a.m.sine die.