A matter was raised in the Seanad on this section and there was a fair amount of discussion on it. I am raising it now for the purpose of hearing from the Minister whether he considered the matter further. Perhaps it would be better to raise the matter when we come to the European section, or to the OECD, but as this section deals with diplomatic immunities, I thought I could raise it now. It is in regard to the position of Irish people who may be assigned——
Diplomatic Relations and Immunities Bill, 1967 [Seanad]: Committee and Final Stages.
Sections 1 to 3, inclusive, agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill".
I suggest that that will probably come up on——
On section 12?
——on section 49.
Right.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill".
Could anybody tell me what section deals with the insurance of diplomatic motor vehicles?
It is in the Vienna Convention.
Is it the Schedule?
Section 5.
I was not present when the Bill was debated here but it is reported in the press that the Minister was invited to express an opinion as to what would happen if a citizen of this State is involved in a traffic accident with a diplomat and it transpires that the diplomat is not adequately insured. The Minister pointed out that it was not possible under the normal diplomatic code for him to impose conditions on diplomats, which I fully understand. Of course in our experience, in 999 cases out of 1,000, no problem arises because the diplomat can waive diplomatic immunity and accept the law, but we are well aware that the multiplicity of diplomatic representations all over the world is growing and it would not be impossible for a situation to arise in which a citizen of the State might find himself seriously injured and in the awkward situation that diplomatic immunity was claimed and no remedy was available to him.
I wonder if there is any way in which, where a diplomatic mission did not indicate to the Minister its readiness to accept the normal jurisdiction of our courts in civilian actions arising from any such incident, the Minister would simply say to such diplomat: "If you will not do it, we must do it," and have an understanding that where a diplomatic mission would not indicate to the Minister its intention of submitting to the civilian jurisdiction of the courts in matters of this kind, and without causing any international incident, the Minister could say: "I must do it on your behalf and I will arrange with the appropriate insurance company to carry the risk which ordinarily in courtesy we would have expected your mission to carry", and thus ensure, without diplomatic upheaval, that the right of the aggrieved citizen of this State would in all circumstances be covered by the appropriate insurance if any accident should take place?
Deputy Dillon has drawn attention to an aspect of diplomatic immunity which causes concern to a number of people. However, we have found up to date that even where diplomats were not covered, in all cases the diplomats met their liability. No State adhering to the Vienna Convention has the right to pursue an accredited diplomat to the courts, but we have the duty to pursue any diplomat who neglected to insure or who refused to pay adequate compensation arising out of injury or damage caused by a motor accident and we can in the ultimate analysis declare a diplomat who refused to pay up to be persona non grata.
Deputy Dillon and others may say that that still leaves the injured party without his compensation. I would say that in the last analysis if, having used all the pressure we could and gone to the extent of declaring the diplomat persona non grata, there was no other remedy left, the Dáil would have to consider the matter. After all, it is the State which is granting these diplomats their immunity and we are doing it in the best interests of the State. We are committed to give it under the Convention — we have no way out of that commitment, and therefore the Irish citizen, or the person who is injured on Irish roads, could in the last analysis appeal to the State, to the Government, to see that his compensation is forthcoming. I do not think that in such circumstances, if they ever arose— I doubt if they would — a Minister would have any difficulty in getting the Dáil to pay the small sum involved, small from the point of view of the State but perhaps large and very significant for the person who has been injured.
I do not want to make a mountain out of a molehill. I agree entirely with the Minister that the likelihood of such an incident arising is extremely remote. I sympathise with the Minister's suggestion in regard to invoking the persona non grata ultimate sanction in order to remedy a situation of this kind. However, it did occur to me that without creating any diplomatic uncomfortableness, it would be possible to say to a diplomatic mission: “The Convention is there. It was ratified. That gives rise to the possibility of civil action. We fully recognise that the mission has no obligation to submit to our law but we would be glad to know if it is the intention to do so, so that we can take other appropriate measures to guard against the possibility of such accidents if the mission determines, in the exercise of its rights under the Convention, not to accept liability for such accidents.” That problem arises.
Supposing the present situation remains and there is no party to sue. That is the present situation. If the diplomatic mission refuses to submit to jurisdiction, there is no party to sue. There is no court to determine the measure of the damage so when it comes to determining what compensation is suitable, the Minister must go to the Department of Finance and ask leave to bring in an ad hoc Supplementary Estimate as an ex gratia payment to the person injured, whereas if the Minister could think of some device whereunder he would stand in in any case where a diplomatic mission had declined to meet its liability, and would suffer himself to be sued for the tort of the diplomatic mission, then the amount of the damage could be fixed by the judiciary, whereafter the Minister could either rest on the insurance arrangements he had made or come to Dáil Éireann with a Supplementary Estimate for the amount of the damages fixed by the court in which he was the nominal defender.
While I do think that the Minister is entirely right in saying that the problem here is miniscule, and rarely if ever arises, I can recall in my experience one or two occasions on which a diplomatic mission did claim diplomatic immunity, not in a matter of damages but in a matter of criminal law, and I think it would be a desirable thing, with all the talk there is about diplomacy and diplomats, to be able to say clearly to everyone that diplomatic immunity is a mutual convenience every nation affords every other nation, but that it is not done at the cost of any individual citizen of the State, and that where any tort is perpetrated by any member of a diplomatic mission there is a remedy. We cannot say this under the present terms of the Convention.
I suggest to the Minister that it might be desirable to consider the possibility of creating a situation in which in the unlikely event of a diplomatic mission refusing to suffer itself to be sued in our courts, he would have power to suffer himself to be sued and seek from Dáil Éireann authority to pay whatever damages an independent judiciary might assess.
I think we would require an Act or a section of a Bill to cover the suggestion made by Deputy Dillon, for the Minister to stand in if an aggrieved party could not take a diplomatic representative to the courts to get compensation. As I said in my first reply to Deputy Dillon, in the last analysis, if there is no remedy other than the State paying an Irish citizen who has been injured or whose property has been damaged in a motor car accident, the remedy would be to ask the Dáil to meet whatever reasonable compensation was necessary in that case. There would be no difficulty in getting a decision as to what was a reasonable amount.
However, there are many actions that could be taken before we come to that situation. The ideal remedy is that the diplomats should always be insured. We have in recent years taken steps to ensure that that will be so. We have circularised them and we keep reminding them about it. There is a question of seeing their insurances from time to time. That is a matter which is under consideration. That may be the way to meet it.
If that is done, I am content.
Supposing a slip occurs and a diplomatic representative happens to have a motor car accident and his insurance has run out.
That is a contingency we can meet without legislation.
The whole atmosphere surrounding immunity is affected by a Resolution passed at a United Nations conference on diplomatic intercourse and immunities. In the Resolution we are speaking about, there were several sections. The last two sections read:
Mindful of the deep concern expressed during the deliberations of the Conference that claims of diplomatic immunity might, in certain cases, deprive persons in the receiving State of remedies to which they are entitled by law,
Recommends that the sending State should waive the immunity of members of its diplomatic mission in respect of civil claims of persons in the receiving State when this can be done without impeding the performance of the functions of the mission, and that, when immunity is not waived, the sending State should use its best endeavours to bring about a just settlement of the claims.
We must remember that the decision to waive or not to waive does not reside in the diplomat: it resides in his Government. I do not think any Government could claim that if a diplomat has a car accident in a car that was necessary for the performance of his function and his mission, he should not pay compensation, if he had overlooked insurance. I do not think-it necessary to go any further than we are going in this Bill — any further than the Convention and this Resolution go—but if, in the last analysis, by some combination of accidents, we find ourselves in a situation where an Irish citizen has been run down or his car has been hit by a car belonging to a diplomatic representative and there is no insurance and we cannot get compensation from the representative concerned then, finally, there is a remedy which could be taken here in the Dáil.
Question put and agreed to.
Sections 6 to 10, inclusive, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill".
Does this apply in the event of an Irish judge being appointed or does it apply to all judges?
It does, yes.
Question put and agreed to.
Sections 12 to 20, inclusive, agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."
Does the immunity provided by this Convention apply to representatives or substitutes as well as to the Minister or the Minister's representative?
Yes.
Question put and agreed to.
Sections 22 to 48, inclusive, agreed to.
SECTION 49.
Question proposed: "That section 49 stand part of the Bill."
The point was made in the Seanad that where an international organisation appoints an Irish citizen as its representative or assigns certain functions or duties, or requests an Irish citizen to undertake, say, an investigation or to carry out any particular type of work on behalf of the organisation, that person should be free to accept such an assignment, such an appointment for the work designated, without securing the consent of the Government. When the matter was before the Seanad, the Minister undertook to consider it further. It does seem that this particular type of work is different from the work which one normally associates with diplomats or persons enjoying diplomatic status. I suppose that, up to relatively recent years, when people carried out any form of representation or work, it was on behalf of a Government and, to that extent, they were accredited by one state or represented one state in the dealings with another and therefore were sent or assigned or undertook on behalf of the sending state a particular form of representation in the accepting state.
Nowadays, with the very substantial growth in international organisations and the multiplicity of these bodies, as well as the wide ramifications which the work of international bodies and agencies have assumed, the older type of representation has been widened to a much greater extent. We are all familiar with technical personnel of one type or another undertaking specified limited work on behalf of international organisations. As this section is phrased, if, say, OECD or any of these international organisations decide to appoint an Irish person to undertake a particular assignment, or to perform what they consider specialised work, he or she may accept that assignment only with the consent of the Government.
There are three likely results. The body concerned, or a number of these international organisations, if they are put to that trouble, may say: "Well, it is easier to get somebody else to do it", and therefore an Irish citizen who would benefit by this may not be selected. Again, the organisation concerned and the Government may merely accede to these requests as a matter of form. However, it does seem that the other likely result is that the organisation concerned will appoint people who are not Irish citizens and, to that extent, our citizens will lose by the non-selection of Irish people and the selection of outsiders to do the work. As drafted, the section seems to be too wide. I would be interested to hear from the Minister whether he has had an opportunity since the discussion in the Seanad of considering a possible amendment.
I do not suppose it will arise that frequently but, on the other hand, with the multiplicity of activities of various international organisations and the range of work which so many of these do from time to time, a great deal of this work is of a highly specialised nature, has no political significance in the internationally accepted interpretation of these matters and could be of no consequence in many cases except to the organisation concerned and, of course, to the affected interests here. Therefore, there was a strong view expressed in the Seanad of the provision taken here which states that where Irish citizens are appointed they may not be appointed except with the consent of the Government. So far as I am aware, this proviso exceeds anything contained in similar legislation in most countries. I think there is a difference between the wording here and that contained in other legislation. When the matter was before the Seanad some weeks ago, the Minister undertook to consider it further and perhaps he will indicate what conclusions he has reached?
The Leader of the Opposition is right in saying that there were strong views expressed in the Seanad but there were two sets of views and they were both stated very strongly. The first set of views was that in the Bill as it stood before the insertion of section 49, we were giving the right to somebody abroad to nominate an Irishman here to do some job of work for an international organisation, looking for statistics, writing appreciation of certain problems, and so on, and so forth, and that that would give this Irishman a licence to rampage around the country with complete immunity and that nobody could do anything to hold him responsible for his crimes against the community.
Senator FitzGerald stressed very heavily this aspect that we were giving this gentleman a licence. He said:
There is an absolute immunity there. It is not qualified by any requirement that such person be named.
He suggested there that before an Irishman had the right to claim these immunities by virtue of the assignment of some work to him by the Secretary-General of an outside organisation, at least, he should be named to the Government. He said that, not only once, but several times. That was in column 1391 of the Seanad Debates of 1st March, 1967, volume 62, In the same volume, at column 1394, the Senator said:
Those people are being put in a privileged position. First of all, there is the particular effect that arrest while such people are performing duties here is not covered.
Again, he said:
There is also the other provision which is very strange, whereby there is no requirement that they shall be named.
Further, in the same column, he said:
The mere fact that the Organisation employs them automatically gives this privilege.
In column 1395, he said:
I believe that they should at least be named by the Secretary-General of the OECD as being people who should properly enjoy this safety.
Further down in the same column, he said:
This automatic immunity should only be given to people to whom the Secretary-General wants to give it.
I am giving only short extracts. That is one set of opinions that were expressed very strongly by Senator FitzGerald.
I found it very difficult to credit that a Secretary-General would nominate somebody to work here without advising the Government, thereby giving them a chance to object, which I do not believe that either this Government or any other Government would do but, at least, it would be the courteous and the right thing for the Secretary-General to do. International relations would be improved by the extension of such a courtesy. On this matter of how representatives of organisations — and foreign States are included in that — are appointed, I would add——
There is a distinction. I thought this only applied to organisations as distinct from States.
It does. I want to point out that a number of these Conventions or agreements in the OECD, the Council of Europe and many others, were drafted and agreed to before the definitive international Convention on this, which was the Vienna Convention on Diplomatic Relations. When it came to setting down in writing what was usually and generally agreed, the privileges and immunities that should be granted to diplomatic and consular representatives, the Vienna Convention on Diplomatic Relations states in Article 8, which is given on page 15 of the Bill:
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the sending State.
2. Members of the diplomatic staff of the mission may not be appointed from among persons having the nationality of the receiving State, except with the consent of that State which may be withdrawn at any time.
3. The receiving State may reserve the same right with regard to nationals of a third State who are not also nationals of the sending State.
I am convinced that if this Vienna Convention had been agreed to away back in 1945, all the agreements on the immunities and privileges of the representatives of these international organisations would have been based on that Convention. However, we have to take the matter as it stands. We agreed to the OECD Convention and the protocol setting out the immunities. We cannot give a direction to the Secretary-General that he should carry out the normal procedure of advising the Government when he is going to appoint an official who will be operating in Ireland.
I would not regard some expert who got a fee for writing a paper on any particular subject for the Secretaryin General of the United Nations or the Secretary-General of OECD as being in full employment. He gets a fee for producing a paper. However, Senator FitzGerald certainly left a number of Senators under the impression that, if something were not done, the Irish people were going to face great danger from the gallivantings of people appointed by one or other of these international organisations even to write a paper. I thought the right thing to do was to introduce section 49, which I think is very reasonable and is in conformity with Article 8 of the Vienna Convention.
Section 49 says:
Officials of an international organisation, community or body referred to in this Act or an organisation to which this Part applies serving in the State or persons performing duties in the State assigned to them by any such organisation, community or body shall not be appointed from among persons who are Irish citizens except with the consent of the Government, and the consent may be withdrawn at any time.
I think the Leader of the Opposition will agree with me that no Government, this Government or any future Government, would dream of saying "No", if the Secretary-General of OECD or the Council of Europe inform them they propose to appoint a certain Irishman to do some work here, writing or studying some problem that was affected by our local conditions. But it gives an assurance to people who might become excited by what Senator FitzGerald said that it is not going to happen. It would be only a reasonable thing for the Secretary-General to let us know if he was going to station somebody here for a time, whether a foreigner or an Irishman, somebody who would be employed by him and working in Ireland. I have no doubt that anybody so selected by the Secretary-General to do some work for him would be acceptable to the Irish Government.
I should like to make one point. I think there is a distinction between these organisations and the normal diplomatic representation covered by Article 8 of the Vienna Convention on Diplomatic Relations. I agree that normally there is not much likelihood of somebody writing or reporting on a matter in a fashion that would in some way or other show a particular aspect of the country in an unfavourable light. On the other hand, there is an advantage in many cases in having people familiar with the country, though in certain circumstances it might be argued that an outsider might be in a position to undertake a more objective examination or investigation.
Looking at the particular report which, I suppose, we are all most familiar with on which this has arisen — the OECD Report — this is based on data supplied by the different affected Government Departments here. The statistical information and other facts included in that report are based entirely on information supplied by the appropriate Government Departments, but the final conclusions are deduced by the OECD authorities and are expressed as their views or opinions. It seems to me, therefore, there is a distinction between a diplomat representing a Government or a person representing a State — whatever his status, whether an ambassador or a person of subordinate rank — and the person assigned a particular function for the purpose of a specific investigation or inquiry by a specialised agency or organisation.
It appears that if this section were amended in some way by saying "With the consent of the Government, such consent not to be unreasonably withheld." It might cover the objections made and, at the same time, grant the powers which I think in all the circumstances are reasonable enough, provided there was no suggestion that these consents would be unreasonably withheld. It might be that a particular person was selected by an international organisation because of his known views, even his political views or any other views, on a particular matter, and the Government of the time might object to him. If that particular organisation felt he was the best person qualified to undertake it, then the fact that a person might hold views that were in some way or other different from those of the Government might mean that the consent which would normally be given would not be given. It is hardly likely to arise in many cases. If this section were amended by the inclusion of the words "such consent not to be unreasonably withheld", the safeguard that some people think necessary is provided, while at the same time reserving the right of the Government, acting, I suppose, on the advice of the Minister, to have the necessary powers, which would be in line with the phraseology of Article 8 of the Vienna Convention.
The Leader of the Opposition can be assured that the consent of the Government would not be unreasonably withheld if the Secretary-General of an organisation wishes to have a representative who is an Irishman resident here in the State. Deputy Cosgrave has not fixed in his mind that this refers to somebody who is doing a little research, producing a paper, in fact producing a paper for himself so that he can send it to the secretary of one of these organisations and get a fee for it or perhaps not get a fee for it. It is not necessary for the performance of that sort of work that the person concerned should have the privileges and immunities of an ambassador. That would be putting an Irishman into a position in which he could escape if he committed some offence against one of his fellow citizens, and it is not necessary in relation to that work.
If it comes to the point where one of these organisations sets up office here — and the United Nations has several offices all over the world — I think it is right that, whether it is the United Nations, the Council of Europe or the OECD, the secretary-general, if he wishes to have a standing office of that kind, should propose to the Government concerned the setting up of this office and that he proposes to appoint an official to run it, whether he is an Irishman or a non-national. Particularly is it right and proper that he should do so if the person to whom he proposes to give the position is an Irish citizen resident here. Apart from that, the phrase which Deputy Cosgrave has suggested, that such consent should not be unreasonably withheld, goes without saying.
If section 49 is studied very closely, it will be seen that it does not prevent a secretary general appointing somebody, if he wants to do it, but it does prevent that person going into court and claiming that, because he has got an appointment from the secretary-General of one of these organisations, even though the Government here knew nothing about it, he is above the law, that he is in a privileged position vis-à-vis his fellow citizens. As I pointed out, it did not occur to us to include this section when the Bill was being drafted, but when Senator FitzGerald raised this point, I could see he was going to create a scare. I took what steps I could to prevent any scare, and I think this is a reasonable section.
May I raise a point with the Minister of the recruitment and status of Irish nationals serving in these organisations, OECD, FAO, the Council of Europe, the United Nations, and so on? I take it that in the majority of instances, they are Civil Service personnel; in fact, they would have to be to join an organisation like that to be effective and efficient. What is the procedure that is usually adopted when an application is made by an Irish civil servant for a transfer to one of these international organisations? I take it that he is seconded from the Irish Civil Service and that he becomes ipso facto an international civil servant. When he is transferred to this international civil service, does he carry his full pension rights and other rights with him to these international organisations, or is he only transferred for a longer or shorter period and does he ultimately come back to the Irish Civil Service and have full pension rights and time allowed to him for such period as he served abroad? This has nothing to do with the discussion that has taken place in relation to a particular service a person may carry out in another country, for instance, writing a paper, as the Minister said, but, generally speaking it seems to me that if a civil servant is transferred to one of these international organisations, he would automatically become an international civil servant and therefore would come under the direct control and discipline of the head of such an organisation who is usually designated as the secretary general. I should be grateful if the Minister would clarify this point.
These international organisations are not bound to appoint only civil servants. The United Nations Organisation employs more Irish people than any of these other organisations, and in the case of an Irish civil servant being offered employment by the United Nations, he asks leave of his Minister to take it up. He may be offered temporary employment or he may be offered a lifetime employment. In the case of temporary positions, we have a number of civil servants who are experts in either an administrative or a technical capacity and, if they leave for a few years, they can come back again into the Civil Service. They do not sever their relations with the Irish Civil Service. There are, then, the other cases in which people are offered lifetime employment in pensionable posts in the United Nations; in that case they sever their connection with the Irish Civil Service.
Can the Minister state the equivalent conditions in the United Nations, which may be somewhat different from those of affiliated organisations such as the Council of Europe and the OECD?
There are not many in the OECD.
There are some.
There are some.
Are they civil servants or are they in the same position as in the United Nations? May they be employed either temporarily or permanently?
It all depends. They may be offered a temporary or a permanent position. If they are offered a permanent position, they cut the connection with the Irish Civil Service. If they go temporarily, they can come back and many of them have done so.
Question put and agreed to.
Schedules agreed to.
Title agreed to.
Bill reported without amendment.
Next stage?
Could we have the remaining Stages now? The Budget will be on next week.
Agreed to take remaining Stages today.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."
Could the Minister say if the countries which have acceded to these Conventions have implemented the terms of the Conventions in legislation?
In relation to the Vienna Convention, 53 have already passed legislation; in the case of the consular, 20 have passed legislation; in the case of the United Nations, 87 have passed legislation; in the case of the specialist agencies, 56 have passed legislation. With regard to the Council of Europe General Agreement, all members, except Cyprus, France, Ireland and Malta have passed legislation and we are doing it now. The fact that countries have not passed legislation does not mean that it is not the law if they have constitutions like ours.
I know.
Question put and agreed to.
A message will be sent to Seanad Éireann.