Dáil Éireann díospóireacht -
Tuesday, 16 Feb 1954

Vol. 144 No. 4

An Bille um Choinbhinsiúin Chonsalachta, 1953—An Dara Céim agus Céimeanna ina dhiaidh sin.

An tAire Gnóthaí Eachtracha (Proinsias Mac Aogáin)

Tairgim go léifear an Bille an dara huair anois. Is Bille é seo a bhaineas le cúrsaí Consalachta i gcoitinne ach tá sé ag teastáil, sa chéad áit, chun críche áirithe. Teastaíonn sé uainn chun cumhacht a thabhairt don Rialtas a chomhairliú don Uachtarán an Coinbhinsiún Consalachta a rinneamar le Stáit Aontaithe Mheirice, a dhaingniú. Do síníodh an Coinbhinsiún seo chomh fada siar leis an lú Bealtaine, 190.n Is é an gnás ag Rialtas na hÉireandí riamh agus i gcónaí, gan oblagái5, eadarnáisiúnta a ghabháil orthu féin go dtí gur deimhin leo go gcuireann dlí na Éireann ar a gcumas na hoblagáidí sin a chomhlíonadh go héifeachtúil. Chuige sin ní mór scrúdú cúramach a dhéanamh ar dhlí na tíre, mar atá faoi láthair, chun a fháil amach an dtugann sé don Rialtas na cumhachta atá riachtanach. Sa chás áirithe seo, b'éigean féachaint cá mhéid a chuireann an dlí ar ár gcumas díolúintí agus pribhléidí a thabhairt d'oifigigh Chonsallachta, ar aon dul leo siúd a ráthaíonn an Coinbhinsiún sin leis na Stáit Aontaithe.

Faoi Airteagal 29 den Bhunreacht is cuid de dhlí na hÉireann an dlí eadarnáisiúnta; ach comhairliodh dom, cé go bhfuil an dlí agus an gnás eadarnáisiúnta bunaithe go maith maidir le pribhléidíagus díolúintí oifigeach Taidhleoireachta, nach bhfuiltear cinnte cad iad na cearta atá ag oifigigh Chonsalachta chun na bpribhléidí agus na ndíolúintí sin. Ar thaobh amháin, níl aon amhras ann ná gur féidir linn, faoin dlí agus faoin ngnás riaracháin atá i bhfeidhm, mórán, agus b'fhéidir an chuid is mó de na pribhléidí a háirítear sa Choinbhinsiún leis na Stáit Aontaithe a thabhairt d'oifigigh Chonsalachta tíortha eile. Ar an láimh eile, tá pointí tábhachtacha áirithe a bhfuil amhras ina dtaobh. Tá an Bille seo á thabhairt isteach chun deireadh a chur leis an amhras sin agus chun a dheimhniú go bhféadfar na hoblagáidí go léir a ghabhamar orainn a chomhlíonadh go héifeachtúil.

Ach, faoi mar adúirt mé, baineann an Bille, ní hamháin le díolúintí a chur in áirithe d'oifigigh Chonsalachta na Stát Aontaithe, ach d'oifigigh tíortha eile freisin. Tá sé ceaptha leis an mBille cumhacht a thabhairt dúinn téarmaí aon chonartha den tsórt céanna, a dhéanfaimis feasta le haon tír eile, a chomhlíonadh. Bhéarfar díolúintí agus pribhléidí d'oifigigh Chonsalachta tíortha eile a thabharfaidh a gcómalairt dúinne. Is é sin le rá nach dtabharfaidh an Stát, de ghnáth, na pribhléidí agus na díolúintí sin d'ionadaithe Consalachta tíre áirithe mura dtabharfaidh an tír sin a gcothrom de dhíolúintí agus de phribhleídí, sa tír sin, d'oifigigh Chonsalachta na hÉireann. Sin é an prionsabal atá curtha romhainn sa Bhille seo.

Tabharfar faoi deara, faoi chlásal 2 den Bhille, nach mbeidh na pribhléidí a bheirtear d'oifigigh Chonsalachta tíortha eile, sna hailt ina dhiaidh sin, ag dul d'oifigigh Chonsalachta aon tíre, mura mbeidh i bhfeidhm, de thuras na huaire, Ordú ón Rialtas, faoin gclásal sin, ag tabhairt feidhme do na forála sin sa tír sin. Ní dhéanfaidh an Rialtas Ordú den tsórt sin mura rud é, sa chéad dul síos, gur tír Choinbhinsiúin Chonsalachta do réir an Bhille an tír sin, is é sin le rá, tír a bhfuil Coinbhinsiún Consalachta leis i bhfeidhm agus, sa dara dul síos, gur deimhin leis an Rialtas go dtugtar d'oifigigh Chonsalachta na hÉireann sa tír sin cumhachta pribhléidí agus díolúintí mar háirítear sa Bhille seo. Leagfar faoi bhráid Tithe an Oireachtais gach Ordú a dhéanfaidh an Rialtas faoin gclásal seo.

Go dtí seo ní dhearnamar ach aon Choinbhinsiún Consalachta amháin— leis na Stáit Aontaithe. Cuireadh cóipeanna den Choinbhinsiún sin chun na dTeachtaí. Leasaíodh an Coinbhinsiún i 1952 trí Phrótocol, a bhain amach Airteagal 18 den Choinbhinsiún agus d'fhág an scéal mar bhí sé idir an dá thír i gcás na nithe lenar bhain an tairteagal sin. Beidh tuilleadh le rá agam ina thaobh sin ar ball. Cuireadh cóipeanna den Phrótocol chun na dTeachtaí freisin.

Baineann clásail 3 agus 4 den Bhille le cumhachta agus dualgais oifigeach Consalachta maidir le heastáit daoine marbha. Cuirid ar chumas oifigigh Chonsalachta do thír choigríche gníomhú thar ceann náisiúnaigh den tír sin, chun deonadh riaracháin d'fháil nó maoin a ghlacadh. Beartaíodh ar dtúis, leis na clásail sin, éifeacht a thabhairt d'fhorála Airteagail 18 den Choinbhinsiún leis na Stáit Aontaithe. Tá an tairteagal sin scriosta anois, mar a mhínigh mé cheana. Is é cúis a bhí leis sin nach raibh Seanad na Stát Aontaithe sásta an Coinbhinsiún a dhaingniú leis an airteagal sin ann. Mheas an Seanad go mba shárú ar na cearta a bhí ag Stáit an Aontais, faoi Bhunreacht Mheirice, na cumhachta a bhí á dtabhairt d'oifigigh Chonsalachta faoin airteagal sin. Mar sin féin meastar gur maith an rud é clásail 3 agus 4 a choimeád sa Bhille ar dhá chúis. Cúis a haon, d'fhéadfadh sé go ndéanfaí comhaontú nua le húdaráis na Stát Aontaithe i dtaobh an phointe seo; ach is ceart dom a rá go bhfuil an scéal mar atá iarbhír, agus mar a choinníonn Prótocol 1952 é, sásúil, tríd is tríd, ónar dtaobhna, agus go bhfuil ar chumas ár gConsal sna Stáit Aontaithe, nuair is gá sin, ionadaíocht a dhéanamh go héifeachtúil d'Éireannaigh a bhíonn ag éileamh leasa in eastáit daoine marbha. Cúis a dó, ós rud é gur féidir feidhm a thabhairt don Choinbhinsiún seo maidir le tír ar bith, d'fhéadfadh na forála seo bheith tairbheach i gcás Coinbhinsiúin Chonsalachta a déanfaí le tír éigin eile seachas na Stáit Aontaithe.

Faoi chlásal 5 beidh ar oifigigh Chonsalachta a fheidhmeos na cumhachta a thugann clásail 3 agus 4 dóibh, na díolúintí agus na pribhléidí eile atá acu a ligint uathu i ndáil le feidhmiú na gcumhacht sin. Lena chur i mbeagán focal, má théann siad isteach i gcúirt in Éirinn, ag iarraidh deonadh riaracháin, caithfidh siad géilleadh do dhlínse na cúirte sin.

Forálann clásal 6 nach cead don Gharda Síochána dul isteach i gConsalacht gan toiliú an oifigigh Chonsalachta i gceannas, ach, mura mbíonn seisean sásta nó má bhíonn sé as láthair, féadfaidh an tAire Gnóthaí Eachtracha toiliú leis an nGarda do dhul ísteach ann. Is léir nach dtoileoidh an tAire ach amháin i gcásanna an-speisialta agus ar chúiseanna troma. Is féidir, áfach, cur isteach ar an díolúine a thugann an mhír seo i gcás éigeandála, cuir i gcás, dá mbeadh amhras ann go ndearnadh coir foréigin nó dá dtarlaíodh tine ann, agus freisin i gcás teideal a bheith ag duine dul isteach ag feidhmiú cirt phríobháidigh, cuir i gcás, nuair a bheadh teideal ag an tiarna talún ar áitreabh Consalachta, a bhí á theachtadh ar léas, dul isteach ag iniúchadh an áitribh. Ní ghabhann an díolúine seo le háitreabh Consalachta mura bhfuil an t-oifigeach Consalachta i gceannas ina náisiúnach den tír darb ionadaí é; mar shampla, ní bheadh an díolúine sin ag gabháil le Consalacht oinigh inar shaoránach Éireannach an Consal. Mheasas go mbeadh sé ceart na pointí eolais sin a lua toisc a thábhachtaí atá an clásal seo.

Ní gá mórán a rá i dtaobh na coda eile den Bhille gearr seo. Tógfaidh mé clásail 7, 8 agus 9 le chéile. Bheir clásail 7 díolúine phearsanta ó dhliteanas, sibhialta agus coiriúil, i leith gníomhartha a dhéanann oifigigh Chonsalachta ina gcáil oifigiúil, agus a dhéanann fostaithe Consalachta i gcúrsa a ndualgais oifigiúil; bheir clásal 8 díolúine do cháipéisí Consalachta; agus forálann clásal 9 nach féidir a chur d'fhiacha ar oifigigh agus fostaithe Consalachta fianaise a thabhairt ar nithe áirithe. Comhairlíodh dom gur dócha nach bhfuil sna clásail sin ach léiriú ar an dlí eadarnáisiúnta, ach measadh go mba mhaith an rud é foráil speisialta a dhéanamh ina dtaobh, toisc amhras a bheith ann i leith pointí áirithe. Go háirithe, do hinseadh dom nach bhfuil sé soiléir go n-admhaíonn an dlí eadarnáisiúnta díolúine phearsanta a bheith ag fostaithe Consalachta (fiú i leith gníomhartha a rinneadh i gcúrsa a ndualgais oifigiúil), ná go n-údaraíonn sé d'oifigeach Consalachta diúltú fianaise a thabhairt i dtaobh a ghnótha oifigiúil. Ní mór na hamhrais sin a réiteach ionas go bhféadfaimid oblagáidí follasacha an Choinbhinsiúin a chomhlíonadh, agus dá bhrí sin cinneadh ar an scéal a shocrú le reacht.

Baineann clásail 10 agus 12 le nithe níos teicniúla, gur ghá foráil reachtúil a dhéanamh ina dtaobh chun oblagáidí an Choinbhinsiúin a chomhlíonadh. Faoi chlásal 10 beidh admhála oifigigh Chonsalachta ar sheirbhísí Consalachta saor ó dhleacht stampa. Tugann clásal 11 teideal d'oifigeach Consalachta brat a thíre a bheith ar crochadh aige ar long Éireannach d'fhostaigh sé le haghaidh a dhualgas Consalachta. Tugann clásal 12 d'oifigigh Chonsalachta cumhachta áirithe maidir le longa raice agus le maoin mhairnéalach marbh.

Comhairlíodh dom gurbh inmholta clásal 13 a chur sa Bhille chun a thaispeáint go n-admhaíonn dlí na hÉireann, d'éagmais an Achta seo, go bhfuil pribhléidí agus díolúintí áirithe ag oifigigh Chonsalachta. Mura ndéantaí sin b'fhéidir go gceapfaí nach mbeadh aon díolúintí ag oifigigh Chonsalachta ó thíortha eile chun na hÉireann ach amháin nuair a déanfaí Ordú Rialtais faoi chlásal 2.

Déanann clásal 14 athghairm ar Alt 4 den Domicile Act, 1861. Bhí forála san alt sin a bhí ar aon dul, nach mór, leis na forála atá anois i gclásal 3 den Bhille. Dá bhrí sin is féidir an t-alt sin d'athghairm, sa mhéid go raibh sé i bhfeidhm riamh sa tír seo.

Ag críochnú an ghearr-chuntais seo ar an mBille dhom, ba mhaith liom pointe amháin a threisiú go speisialta. Tabharfaidh na Teachtaí dá n-aire gurb é bun-chuspóir an Bhille seo díolúintí agus pribhléidí a dheonadh mar mhalairt ar a gcothrom de dhíolúintí agus príbhléidí. Uime sin is ceart a thábhacht a bhreithniú ní hamháin maidir leis an tír seo, ach maidir leis an gcómalairt díolúintí agus pribhléidí a deonfar d'oifigigh Chonsalachta na hÉireann a bheidh ar seirbhís lasmuigh d'Éirinn. Tá tábhacht mhór ag baint leis na pribhléidí agus na díolúintí a gheibheann Consail Éireannacha ó thíortha eile; agus go háirithe ó na Stáit Aontaithe; mura bhfaighidís iad ní fhéadfadh ár gConsail freastal ar leas na hÉireann i dtíortha eile chomh maith agus chomh héifeachtúil agus a dhéanaid sin. Is fiú a mheabhrú gurb é atá sa Bhille seo an chómalairt is gá ar na díolúintí a tugtar do Chonsail Éireannacha i dtíortha thar lear.

Mar fhocal scoir ba mhaith liom a rá gur mór an sásamh dom go bhfuilimid, leis an mBille seo, ag réiteach an bhealaigh chun an chéad Choinbhinsiún Consalachta atá déanta againn a dhaingniú—is é sin, an Coinbhinsiún lenár gcairde maithe Rialtas agus pobal na Stát Aontaithe. Tugann an Coinbhinsiún sin cruthúnas breise ar an dámh muintearthais atá idir an dá thír.

Mr. D. Costello

I venture to prophesy that there will not be very much controversy over this Bill. I have very little to say on it. I am glad this Bill has at last come before the Dáil, because it gives us an opportunity of putting into effect the contents of the consular convention entered into between this country and the United States of America. For that reason, we must welcome this Bill and be glad that it is at last before the House. We hope it will get a speedy journey through this House and the Seanad. What I have to say on the Bill can be very briefly put. The matters I want to refer to are merely matters of detail.

First, I should like to ask the Minister whether he considers putting into this Bill provisions which are contained in an English Act passed within the past couple of years giving diplomatic immunity to certain representatives of international organisations. In England, at the present time, certain international organisations, such as U.N.O., of which, of course, we are not a member and it would not apply in our case, have got diplomatic immunity. I should like the Minister to say if he considers whether it should be necessary that the members of certain international organisations of which we may be members should be accorded the same immunity which we accord to ambassadors and members of the staffs of consulates in this country.

The other points which I wish to raise on the Bill are purely matters of detail. The first is in respect of Section 3. It seems advisable to me that there should be inserted in Section 3 the procedure by which an application would be made to the court under that section by a foreign consul. At the moment there would be no rules of court which would cover an application under Section 3. I should like the Minister to consider whether he should insert in Section 3 that such application would be by notice of motion to the judge of the High Court or that it would be unnecessary to serve any person by such notice of motion. I think it would get over the difficulties which practising lawyers would have when faced with this section as to what procedure they would adopt if the particular facts which this section intends to cover were to come to their notice. I would suggest, therefore, that the method of procedure should be delineated in detail in the Bill.

The only other matter I wish to raise on the Bill concerns Section 7, the diplomatic immunity which it is proposed by the section to give consular officers. At the present time, as I understand it, the diplomatic immunity which flows from the principles of common law and was, in fact, enshrined in an Act as far back as 1708 has, by a series of decisions, been extended not merely to ambassadors but also to people employed in the embassies and to consulates of foreign countries in this country and in Great Britain. It does include certain people like military attachés and assistant military attachés. I think it is right that we should give diplomatic immunity to consular officers as well as to the people who under the existing law and the decisions under the existing law have diplomatic immunity.

There is this one matter, however, which strikes me in this section. As I understand the law at the present time diplomatic immunity is given to people during the continuance of their office and persons who are subject to diplomatic immunity can, after they cease holding office, be sued for matters for which they would have immunity during their period of office. It seems to me that under Section 7 we are declaring that consular officers are to be immune from proceedings civil or criminal. It is certainly not clear at any rate that that immunity is only to extend to the period of time that they are such officers. I think it should be clarified if that is the state of the law that no greater privilege should be given to consular officers than is given under the existing law to ambassadors and such people.

Mr. Corish

I only want to ask the Minister a question or two to clear up a point that seems to be slightly vague at the present time. I wonder whether it is made clear in this Bill—perhaps the Minister might make it clear—as to whether or not some of the Social Welfare Acts must be applied by these embassies to Irish nationals who may be employed in them? I should like the Minister to say whether, for instance, the Unemployment Insurance Acts, the National Health Insurance Acts, the Conditions of Employment Act or the Holidays Act, which are Irish laws, must be applied to workers who are employed at any of these foreign embassies.

A case was recently brought to my notice where there was a difference of opinion as to whether or not an employee in one of these embassies should have his cards stamped. My interpretation of the law, international or otherwise, would be that the Conditions of Employment Act, the Unemployment Insurance Acts, the National Health Insurance Acts and the Holidays Act must be applied by foreign ambassadors to Irish employees in their particular establishments.

Mr. Aiken

Deputy Costello wanted to find out whether this Bill proposes to give immunity to members of international organisations such as U.N.O. It does not but, as the Deputy is aware, there are certain privileges which can be extended to distinguished strangers coming here—members of U.N.O. or other organisations—just as they are extended to diplomats properly accredited to this country, and from time to time such privileges are granted. Of course, we cannot give them the legal immunity that is given by international law to ambassadors and representatives of foreign States serving in another country.

Deputy Corish raised a point which has nothing to do with this Bill. This Bill deals with the privileges of consular representatives and their staff in the course of their duty and in matters pertaining to their duties. It has nothing to do with their private lives in any way.

Mr. Corish

Employees need not necessarily be employed, say, by an ambassador in a private capacity.

An Leas-Cheann Comhairle

That does not arise.

Mr. Aiken

We are speaking about consuls and immunity for consular representatives. That has nothing really to do with diplomatic representation or the immunities and privileges of diplomatic representatives.

Mr. Corish

What about a messenger in an embassy?

Mr. Aiken

These are not embassies or legations but consular offices. The consul may sometimes be an Irishman employed or nominated by a foreign country to look after the interests of their shipping or any of their citizens who may come to our shores. Even an Irishman, who is on all fours with all other Irishmen in relation to his personal matters, when he is acting as a consul of a foreign country is given certain immunity in relation to his consular acts.

I do not think Deputy Costello read the particular section which he queried. Section 7 (2) says:—

"A consular employee shall not be liable in any proceedings, civil or criminal, in respect of acts performed by him within the scope of his employment and in the course of his official duties in so far as those duties are within the functions of a consular officer in international law, unless his Government requests or assents to the proceedings."

Outside that limited range of activities he is, of course, liable to proceedings, both civil and criminal. If the act he performs is not within the scope of his employment and not in the course of his official duties and the duties within the functions of a consular officer, then that employee is liable in any proceedings before a civil or a criminal court.

As I have already explained, the reason this Bill is introduced is to enable us to advise the President to ratify the consular convention that we have made with the United States. We are taking powers here which the Government can, by Order, make effective in relation to certain countries when we are getting reciprocal treatment. We were not too sure whether we had all the powers that were necessary to give fully reciprocal treatment for that given to our consuls in America. Our consuls in America do very good work in representing our citizens there and looking after their interests and we are anxious that they should continue to enjoy that treatment. This is one reason that we are particularly careful that the Government is fully within its legal rights in granting similar treatment to American consuls here. The privileges and immunities that are granted to consuls and their agents under Section 3 will only be applied when an agreement is made with another country that similar treatment will be granted to our consular representative there.

Question put and agreed to.

Agreed to take Committee Stage now.

Sections 1 and 2 put and agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill."

Mr. D. Costello

I do not think it is clear how an application would be made to the court under this section. Would the Minister consider putting into the Bill a provision as to how the application would be made?

Mr. Aiken

I am not very familiar with the legal procedure but there is a rules committee which, I think, represents both the Bar and the Bench and everybody associated with regulating procedure in the courts, and I understand it would be within the ambit of the functions of that committee to make rules which would apply in this particular case. However, I promise the Deputy that I will have the matter carefully examined and will consult with the rule-making committee to see whether they are satisfied with this section as it is drafted. If the rule-making committee want any further clarification, I will introduce an amendment in the Seanad to cover the point.

Question put and agreed to.

Sections 4, 5 and 6 put and agreed to.

SECTION 7.

Question proposed: "That Section 7 stand part of the Bill."

Mr. Corish

The Minister said that this particular section provides personal immunity from civil and criminal law for acts done by consular officers in their official capacity and consular employees in the course of their official duties. Does that mean that if one of these officials were travelling from the Department of External Affairs to his own office and was involved in an accident which happened to be his fault, he would be free from all liability—that no claim could be made and no prosecution could be entered against this official who had caused an accident?

Mr. Aiken

Not unless his Government requested or assented to it. The Deputy must remember that this is repeating, in regard to consuls, what is required by international law in relation to diplomatic representatives. It is reciprocal: our representatives abroad get the same immunity. In the case of a criminal act, the Government appointing the diplomatic or consular representative often agrees to his trial within the State to which he is appointed.

Mr. O'Higgins

The Government?

Mr. Aiken

Since all this international system grew up, there have been many changes according to the changes in the way of life in the world. Take, as an example, the motor car accident to which the Deputy refers. Strictly within the letter of international law, as practised up to the beginning of the 20th century, they could plead immunity. But, in practice, they do not run a car here on the road unless they have a licence and unless they have an insurance, and all the diplomatic representatives here have agreed with the insurance companies that they will not plead their immunity if they are involved in a motor car accident. That arrangement is fully satisfactory to everybody: the basis could not be changed except by international agreement. The international law is there and, actually, the diplomatic and consular representatives here have agreed to waive it.

Mr. Corish

I appreciate that this is not a new development. I think the Minister has stated that it has been agreed that immunity with regard to financial liability will not be pleaded. Whether or not there is immunity in respect of a criminal charge, I do not know whether or not the Minister said that these people would not claim immunity in that respect. If that is the case, it is all right. However, if the position is that they will not plead immunity merely with regard to their financial liability, I do not think it is good enough. If these consular officers or their employees got it into their heads that they had a licence to run around this city or any part of this country and that they had immunity from any civil proceedings, then I think it would be dangerous. It is more or less accepted that it is international law but if that is the law I think some steps should be taken immediately to have it corrected.

Mr. A. Byrne

I wish to follow up the statements made by Deputy Corish on the point of immunity in respect of an accident. It has been said that these people have agreed not to plead immunity. Suppose a consul is appointed here within the next two years and that he happens to knock down a cyclist, a married man with three or four children. If that man is killed, what good will it do his widow to be told that we have reciprocal arrangements whereby if one of our men in some other part of the world happens to do the same thing no prosecution will be made and no damages will be sought? I agree with the Minister that there are difficulties; we appreciate that fact. However, I think there ought to be some guarantee in respect of a person who might be knocked down by a car. As Deputy Corish says, if a consul or the representative of another country is travelling from one office to another and if the driver of the vehicle is aware that he will not be allowed to drive unless there is full insurance to cover an accident, then something could be said for reciprocal arrangements. The fact that one of our men in his capacity as a representative of this country in another country is excluded is no satisfaction to a widow and young children if her husband and their father has been killed in such an accident.

Mr. Aiken

Deputy Byrne need not worry. It does not matter how many changes there are in the diplomatic representation here they will hold to the agreement with insurance companies that they will not plead diplomatic immunity in the case of an accident where damage is caused to some person or to his property when a diplomat or a consul is driving a car. Even though they could not be brought up to court and imprisoned for travelling on the roads, a Government would be asked to recall an individual if he was carrying on like that. Therefore Deputy Byrne need not have any fear that the citizens of Dublin are not protected if they are hit or knocked down or if their car is smashed by a car driven by one of the foreign representatives or their staff.

With regard to Deputy Corish's point, while their insurance companies are liable for the damage they cause to third parties, the diplomats themselves cannot be sent to jail for knocking down anybody or killing any person. This Bill provides that a consular officer cannot be tried for an alleged civil or criminal act in respect of acts performed by him in his official capacity unless his Government requests or assents to it. The Bill is designed to ensure that, in regard to his consular acts, he is answerable only to his own Government for the work he carries out on their behalf, and he is not answerable to the Irish courts.

Mr. O'Higgins

I do not think the Minister very fully stated the principle of diplomatic immunity as it applies at the moment. I know that in this Bill it is proposed to extend it to various consular officers. In Section 7 we are merely extending the existing recognised diplomatic privilege to consular officers. Both Deputy Byrne and Deputy Corish have an objection which is not new, an objection which has been raised over years and more or less met over years in international intercourse and representation. All countries recognise that their diplomats accredited abroad and diplomats accredited to them at home are completely immune from all forms of proceedings, both civil and criminal, unless immunity is waived by the representatives themselves.

The Minister mentioned the question of liability in relation to a road traffic accident. There is no obligation on a diplomatic representative here to be insured. There is no obligation on him to meet any claim for damages in respect of negligence or of careless driving. If he were insured, his insurance company can never be made liable because the insured, being a diplomat, cannot be sued unless he agrees to those proceedings. The whole right to recognise the jurisdiction of our courts is exclusively in the diplomatic representative involved.

I do not think the Minister has met the objection raised by Deputy Corish and Deputy Byrne by inaccurately stating that in those circumstances the diplomat's insurance company would be liable. The company would not be liable and could not be liable unless the diplomatic representative agreed to permit himself to be sued in our courts.

Mr. Aiken

That is what they have done.

Mr. O'Higgins

I can assure the Minister that there have been quite a few cases where that has not been so. There is one particular case that occurred not so long ago where, unfortunately, that was not so. I am not against the section. It is a recognised thing and our representatives in Great Britain and on the Continent enjoy exactly the same immunity. It is a very necessary immunity. It is very necessary that our diplomats abroad should not be concerned with purely local regulations of one kind or another of which they would not have any knowledge and certainly they should not be subject to the jurisdiction of foreign courts. Diplomatic privilege is one of the incidental obligations necessarily arising when we accord a welcome to a foreign representative here. We accord to him the same immunity as he would have in his own country, immunity from our laws and the obligations imposed on our citizens here. That is an immunity that we expect to be accorded to our diplomats accredited to the country in question.

I may be completely wrong in this —the Minister will correct me—but I always thought that diplomatic immunity could be waived by the representative himself. I always understood that the minister or ambassador who might have offended against our laws, civil or criminal, became amenable to the sanction imposed by the courts if he recognised the jurisdiction of our courts. I notice in the extension given here to consular officers that the waiving of the immunity must be by the consular officer's Government. That appears to me to be an extension of the present position. I would suggest that the Minister might consider later on, or in the Seanad, providing instead of "unless his Government requests or assents to the proceedings,""unless either he or his Government requests or assents to the proceedings."

Frequently we find in the courts in relation to road traffic accidents where a diplomatic car is involved in a collision with another car, possibly being more gravely damaged than the other car, it might be decided to have the question as to who was responsible decided by the courts. As things are at the moment, I understand the position to be that the diplomat, as the owner, or ostensible owner of the car, waived the immunity and permitted the court then to decide who was liable. I would suggest to the Minister that instead of confining the right to waive the immunity to the Government, the consular officer should also have the right to waive it if he so wishes.

Mr. Aiken

Consuls and their staffs are only granted immunity in relation to acts and functions carried out by them in the course of their duty. Apart from that, in their ordinary private capacity, they are liable like every other citizen. It is different, in international law, in the case of diplomatic representatives who are granted the immunities and privileges of their post. While, in international law, an ambassador could refuse to insure his car, in practice it does not happen. While, in international law, he can refuse to allow himself to be sued for damage, all the diplomats here have, in fact, insured with insurance companies and have waived their diplomatic immunities in relation to damage caused by them in the course of driving a car. The situation, therefore, is that any citizen damaged by a diplomatic car has the right of action against the insurance company and has the right to recover damage, the diplomat having waived his immunity in relation to that particular action long ago.

Mr. O'Higgins

It must be waived ad hoc. He must waive it in relation to the particular case.

Mr. Aiken

They have agreed to waive it. They have agreed ahead of time that they will waive it in every case in which their car is in an accident.

Mr. O'Higgins

I do not think the Minister is stating that correctly. That means that an insurance company would only insure if the insurance company was liable. Surely that is not a condition.

Mr. Aiken

An insurance company would only insure the diplomat——

Mr. O'Higgins

If the diplomat permitted the insurance company to be sued?

Mr. Aiken

Yes—if he agreed that he would waive his immunity and allow the insurance company to be sued. The diplomat insures with the insurance company so that the insurance company will carry the liability.

With regard to international law, like every other law it is never static and, with the development of motoring in the modern world, one could not have the same outlook on road accidents as people had one hundred years ago. Accidents of one kind or another, slight and grave, are of hourly occurrence in a city the size of Dublin, and it would be very foolish for a diplomatic representative not to insure himself. It would be very foolish for the Government to allow diplomats here to drive around the roads, subject to such constant hazard, without having the citizens of the country protected in case of injury by a diplomatic car. I can assure the House that the citizens are as safe from injury without compensation in the case of a diplomatic car as they are in the case of a private car. While the penalties are very full indeed, the State cannot make absolutely certain that someone will not use a car for which he has no insurance or for which he is not insured and knock someone down. That is a very infrequent occurrence; it happens sometimes when a youngster steals a car, if he knocks someone down it is not his vehicle, he is not covered, and the injured person cannot get compensation.

By arrangement, diplomats in every country in modern times have agreed to insure themselves so as to give to the citizens of the country the assurance that they would get compensation. That is the situation here. We have the agreement with the diplomatic corps and they have the agreement with the insurance companies.

Mr. Corish

There is another matter that might be cleared up on this section. It is one which I raised on the Second Reading which is relevant especially to this particular section. Have these consular officers any immunity in regard to those employed by them—clerks, clerk-typists, or even messengers? Is there any obligation on such officers to apply the Social Welfare Acts? Is there an obligation on them to affix insurance stamps to employees' cards or to grant the required annual holiday period? If there is such an obligation and if they default can they be proceeded against for the recovery of sickness or unemployment benefit? Can one sue them for payment in respect of holidays that have not been granted? I do not know whether they are immune in respect of these things and perhaps the Minister would clear up the point. It may be that the Welfare Acts of the countries which these consular officers represent are applied to these employees but at the present time it is not known generally what the position is.

Mr. O'Higgins

It is clear in the Bill. They are not liable.

Mr. Aiken

If the Deputy would read sub-section (4) of Section 7 he would see what the situation is:—

"This section does not exempt a consular officer or consular employee from liability in a civil action arising out of a contract concluded by him in which he did not expressly contract as agent for his Government and in which the other party looked to him personally for performance."

If the consular officer in his private capacity hired somebody, that particular contract is not covered by immunity. It is only if the person were employed in the office, employed directly on the work for which the consular office was established, that he could claim immunity. However, there is the other side to that. Supposing a consul employs an Irish person to work in the office, that Irishman has the right to see that he gets his holidays, that provision is made for stamping his cards, that the employer will pay so much and the employee the rest, or perhaps the employer will pay the lot. That is subject to arrangement. There is no compulsion on an Irish person to go to work for a consul, to carry out consular duties for him, unless he is satisfied with the arrangement. I am afraid that if it were not a personal service, if it were a servant, or an employee in the consular office and he did not get the holidays and did not make arrangements when being employed, the consul could not be taken to court in order to enforce the Holidays with Pay Act.

Mr. O'Higgins

Again I think the Minister is not being fair to himself or to the Bill, or to the section that he is asking this House to pass. Of course the position is that any consular officer —from Tanganyika or China, from England, France, Belgium or anywhere else—who employs a gardener here, is under no obligation whatsoever to contribute to that gardener's unemployment insurance, national health insurance or anything like that. He is under no obligation whatsoever. The Minister's section here provides as it should provide, because the same right is accorded to our consular officers in other countries, that he shall not be liable in any civil or criminal proceedings for any act or omission here. That is the law here and abroad. Why is the Minister trying to cod the House by suggesting in some peculiar way that he would have liability? He would not be liable—the Minister knows it and the House knows it. Why not admit it and let us have an end to it? Deputy Corish is perfectly right. Practically all of the countries with whom we have diplomatic relations are countries with whom we like to have diplomatic relations and they all will agree with our domestic social requirements and they will stamp cards and will make the contributions that ordinary employers are bound to make; but if they do not, there is nothing we can do about it. Neither the Minister nor anyone else can do anything about it. Why not admit that?

Mr. Aiken

I think Deputy O'Higgins is reading more into this Bill than is in it. The fact is that this Bill will grant to consular officers certain immunities and privileges which are given to diplomatic representatives, but these immunities and privileges are only granted to consular officers in their official capacity.

Mr. O'Higgins

If the Chinese Consul employs a gardener, will he do that as the Chinese Consul?

Mr. Aiken

The Chinese Consul might have a consular office in O'Connell Street and might have a private residence in the County Meath. If he has a private residence in the County Meath he is not performing his consular services there, and would not come under the immunities granted to him by this Bill as he does when he is performing consular acts in his consular offices in O'Connell Street. In his consular office in O'Connell Street, he would enjoy immunity, but not on his farm in the County Meath.

That is the position with regard to consuls. It is different in regard to diplomatic representatives. They have full and complete immunity for all their acts, and no attempt can be made to distinguish between what would ordinarily be regarded as personal acts and official acts. They are covered fully and completely and cannot be held responsible in the Irish courts unless they waive their immunity. I have already told the House that a very sensible arrangement has been made in the case of motor cars. Diplomats here, as regards acts arising in these cases, will waive their immunity.

Mr. McMenamin

I understand, of course, that, while they must have absolute immunity in order to protect themselves, they get around that in another way. They are commanded by their Governments to obey the laws of the country to which they are accredited. In that way they would fulfil all these requirements, or at least they are supposed to fulfil them. They are bound to comply with all these things, for example, the use of stamps and so on. I take it that, over and above the immunity which they enjoy, they are bound—in fact it is inherent in their appointment to a friendly country—to obey the laws of that country, no matter what those laws are, civil and penal. That is the position as far as I know it.

Question put and agreed to.

Sections 8 to 15, inclusive, put and agreed to.

Title agreed to.

Bill reported without amendment.

Bill received for final consideration and passed.