Select Committee on Legislation and Security debate -
Wednesday, 7 Feb 1996

SECTION 19.

Mr. O'Donoghue

I move amendment No. 102:

In page 20, subsection (2), lines 31 and 32, to delete "and the Minister".

Section 19 (2) states: ". . . . no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast except with the consent of that person and the Minister.". That is a reasonable provision because the person may or may not wish the matter to be published. However, it is difficult to understand why the consent of the Minister is also required.

Circumstances could be envisaged when an applicant may wish to have his or her case publicised, but the Minister, for his or her own reasons, may not wish this to be done. Accordingly, this subsection would prohibit any such publication without the consent of the Minister. This provision, where the Minister must give consent, is an interference with the liberty of the individual and circumscribes his or her rights. I believe the Minister's consent should not be required.

Ms O'Donnell

It is difficult to understand the point of this subsection relating to the consent of the Minister. If the applicant consents to publicity, I do not know why it is in the interest of the Minister to refuse or to have a role as regards consent other than in the interest of old fashioned secrecy, which we are trying to do away with. Such a provision could prevent publication of information about the assaults on Kurdish refugees in Shannon in recent years, for example. I do not see where the public interest lies in terms of giving the Minister a role in consenting to publicity on such matters.

Mr. L. Fitzgerald

I am baffled by the intention beyond this provision, although I am sure there is a good reason for it from the Minister's perspective. When we talk about justice being meted out to individuals and establishing structures to ensure there is independence and fairness, surely the rights of individuals in terms of the disclosure of their identity should not be diminished by the Minister invoking this power. I do not see the significance of conferring ministerial powers as regards this aspect of the process. I would, however, see grounds for concern as regards other aspects of the procedure. It seems to be a heavy handed provision.

Ms Burton

I understand the concerns of Deputies. While the applicant may be concerned about their family or a political organisation to which they may belong if they are still in their country of origin, I would be concerned about the exploitation of a vulnerable applicant by unscrupulous journalists, not necessarily from Ireland but from the applicant's country of origin, or political interests, who would use the publicity of the applicant's case to push an agenda that may have nothing to do with us but which may be material to the political situation in the country from which the applicant came. It would not be too hard to think of countries in which this might be true.

Another important consideration is that an applicant with a weak case might attempt to boost it by engaging in publicity designed to be observed in the home country and, in a way, attempt to force a positive decision from the authorities. In other countries this can be a very sensitive matter, particularly if applicants come from countries with regimes which are subject to change — for example a party may be flavour of the month one year, but the next it is out of favour.

Mr. O'Donoghue

That happens here too.

Ms Burton

There is a practical difficulty as regards certain countries. While an unscrupulous applicant could use this in relation to their case, I would be more concerned that an applicant might be used by unscrupulous political interests or journalists from their own country.

Mr. L. Fitzgerald

I understand the logic of the Minister's argument and I share the concerns she expressed from both perspectives. Nevertheless, I still have a reservation. Why should the Minister be the arbiter who will determine situations from both perspectives? Given the concerns about this — I have no doubt the Minister's concerns are well founded — I suggest that the final arbiter in such cases might be an independent agency — for example, the commissioner or the appeal tribunal.

Ms Burton

Perhaps I could submit a modification to the parliamentary draftsman to the effect that the Minister could not withhold unreasonable consent and that a test of reasonableness apply to the Minister's withholding of consent. This may meet the situation.

Mr. McGrath

I see the logic of the amendment and of the Minister's contribution. What jurisdiction would the said Minister have in the countries of origin of these people?

Ms Burton

None.

Mr. McGrath

Having the consent of the Minister would probably not matter in such countries as Iraq, from where the refugees come.

Ms Burton

It is not necessary that a great deal of publicity, if it was generated, would be of massive concern in Ireland but it may have political motivation and generate significant publicity in the home country or in exiled circles, which may not be of benefit to the applicant or his or her family. This may be in the interest of the political cause with which the applicant was associated but it may not be in the applicant's interest.

Mr. McGrath

The point is whether the Minister consents. Such publicity would be likely to develop in any event. It would be for the applicant to decide whether it should take place in the country of origin. The Minister will not have a real say in what happens in foreign publications, so having it included is superfluous to the wording of the document.

Ms Burton

It means that, to some extent, we can influence publicity and the nature of publicity here which may, in turn, impact on the way it is dealt with in the other country or in the political cause. I am familiar with this situation from the time I lived in Africa — it is in this context that the change of the regime to which I referred arises. Things can change very fast and in a very sharp way — unlike our happy handovers. I have in mind one case when I say that the applicant's families can be subject to considerable abuse and risk because fashions change. This sounds extreme here, and would be remote from our experience or the experience of most European countries, but there are jurisdictions where it would arise.

Chairman

Before calling on Deputy O'Donnell, Members should be aware that the Minister said she would look at this between now and Report Stage and produce a formula that would be satisfactory, along the lines that the Minister's consent should not be unreasonably withheld.

Ms O'Donnell

The scenario which the Minister outlines in maintaining this defence for the Minister does not deal with the fact that the applicant has consented to the publicity. If the applicant consents to the publicity, surely he can consider his own best interests in this matter? Apart from the interests of censorship or secrecy, I cannot see that this power should be retained by the Minister but I accept that she will look at it, with possibly a test of reasonable behaviour being put on the Minister. However, if the applicant has consented, I cannot see why the Minister should hold on to this power of secrecy.

Ms Burton

The applicants themselves may be vulnerable and this would not be in their interests or in the interests of their families.

Mr. E. Walsh

Excluding vulnerable people who may need the protection of the Minster and taking the situation where it is assumed that the person knows exactly what he wants to do, but the Minister disagrees, perhaps the Minister would consider referring such disputes to an independent body for examination. It may be crucial for the person to have publicity at that point to support his case. If there is a conflict here a serious problem would arise and referral to an independent adjudicator may be the way to proceed.

Ms O'Donnell

The advice of a solicitor may be obtained.

Ms Burton

The applicant can also appeal to the courts against a decision by the Minister.

Ms O'Donnell

Are we not getting tied up in knots?

Mr. L. Fitzgerald

Is there any mechanism in the process where the Minister could identify a process or an individual to address the points raised by Deputy Walsh and I rather than refer the matter back to the courts because there would be a further extension of the procedures if this happens?

Ms Burton

Going back a stage further, it is in the general interests of applicants for asylum status that their cases not be widely publicised because it has implications for them and their families. It may also have implications for other people from the country concerned who may wish to travel to Ireland to seek asylum; I refer here to genuine, not bogus, applicants.

To some extent, the less publicity given to this with regard to our actions and the status they achieve in Ireland, the better for them. There are a number of states especially to which this would apply. If genuine applicants are received others may follow. Publicity which may assist the applicant's political cause or the political cause with which the applicant may be identified may be helpful to the cause, but it may not be helpful to the applicant, who is then presumably safe in Ireland, and especially the applicant's family or others from that country who may choose to follow and seek asylum in Ireland. This would be especially the case if they were using something like secret networks. There may be factors associated with how somebody has arrived in Ireland to become an applicant. There may also be factors as to how we make judgments about why they are granted refugee status, which may be to the detriment of the applicant and his family.

Mr. L. Fitzgerald

The Minister is making an assumption that there is no independent arbiter that could invoke as wide or as global a picture in order to take as much account of these concerns as the Minister of the day. I do not accept this.

Ms Burton

If we seek an amendment where the Minister cannot unreasonably withhold the right, which is reviewable by the courts, this should address the problem. I understand the Deputy's point that applicants are adults who should be free to make their own decisions. This would be true in 99.9 per cent of cases but, as a general rule, it is not helpful to applicants in terms of setting up a new life in this country and the fears which their families left behind may have that, not so much their presence in Ireland but that the details of their cases in Ireland, are disclosed. It is not in their interests.

Ms O'Donnell

The section has an altruistic motivation to protect the identity of applicants. However, it also lays down that it shall be an offence, and liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months, for anybody to breach this secrecy. This would criminalise the actions of interested parties, such as Amnesty International or The Irish Refugee Council if they attempted to highlight or get public support for the efforts of a specific asylum seeker. Such action in the past has been useful and in the public interest around the world, including this country.

The section raises broader questions than the Minister has addressed. Will she look at the section, given that it lays down criminal sanctions, including a term of imprisonment, for anybody in breach of its terms? This is strict censorship of a matter which has public interest ramifications, especially with regard to the efforts of Amnesty International and The Irish Refugee Councils to highlight specific issues.

Ms Burton

The Deputy has an unwarranted fear. This provision only relates to the identity of applicants with regard to the refugee process. It does not relate to any publicity material with regard to Amnesty International or any other body. The equivalent is a family law case. The politics of or the presence of torture in a given country is not related to this, which relates only to applicants for refugee status and their applications. It does not concern anything else they may be involved in which might be of a quasi-political nature in the sense of taking a continuing interest in their homeland.

Ms O'Donnell

If there was cause for concern on the part of Amnesty International or the Irish Refugee Council, in that the procedures being adopted were not to the benefit, were perhaps unfair to the applicant, were falling down or were not in keeping with our legislative intent, which is to introduce fairness in all our procedures, and if either body wished to highlight the fact that the way the Department was dealing with this application was not fair, it would be wrong to censor such a body or any person who highlighted a case.

One case which happened before these procedures were put in place concerned a young man who was imprisoned. Many Deputies raised his case in the Dáil and journalists sought to help him in his quest, as he was a long time in prison waiting for determination of his status. This section in its present state is unfairly restrictive of the right of free speech and the public's right to know. I urge the Minister to reconsider the parameters and implications of this section, which are quite prohibitive in censorship terms.

Mr. E. Walsh

The Minister of State has gone a long way towards explaining why the Minister should have a say. Where there is a genuine difference of opinion, the resolution of such a dispute should be referred to the Refugee Appeal Board mentioned in this Bill.

Ms Burton

In response to Deputy O'Donnell, I have met the Irish Refugee Council on a number of occasions in Dublin and Ennis and it is most anxious that the confidentiality of applicants should be upheld. The council has pressed for this because in the process of asylum seeking, except for high level people who do not usually come to us, the confidentiality of applicants is extremely important for the protection of themselves and their families. The refugee council has made that point to me strongly on a number of occasions and I have no difficulty with either the council or Amnesty. The council is more concerned with the day to day welfare of refugees whereas Amnesty campaigns more broadly on a range of issues. Confidentiality is extremely important to the welfare organisations dealing with refugees. It comes up time and again.

Mr. E. Walsh

The Refugee Appeal Board mentioned in the Bill is an independent body. Surely it would cause no problems to refer the matter to that board if there was a serious dispute.

Ms Burton

I have no difficulty looking at that. I get the sense of what Members are saying but it is appropriate at times to protect people.

Chairman

The point at issue is whether the powers should be reserved ultimately to the Minister or the commissioner, who is the most appropriate person to make the final determination.

Ms Burton

I would be open to that.

Mr. O'Donoghue

I understand the Minister's argument and those of Deputy O'Donnell and Deputy Fitzgerald. A compromise could be reached to which the Minister could not reasonably withhold his consent. Amnesty International was deeply concerned about the Minister having to consent, which is a point worth making. I understand the need to protect a given applicant and for confidentiality, if that is what the individual requires. However, certain provisions in this Bill give a considerable amount of discretion to the Minister and I am concerned that inadequacies in the procedures, and in some cases injustices, however minor, could be papered over as a result of these absolute discretionary powers. That is why I advocate a compromise.

Chairman

The Minister says she will look at it and come back on Report Stage. Amendment No. 102 is being withdrawn on that basis.

Amendment, by leave, withdrawn.

Section 19 agreed to.