Dáil Éireann díospóireacht -
Wednesday, 21 Jan 1976

Vol. 287 No. 1

Diplomatic Relations and Immunities (Amendment) Bill, 1976: Second Stage.

Minister for Foreign Affairs (Dr. FitzGerald)

I move: "That the Bill be now read a Second Time."

Deputies will recall that a motion approving the terms of the Lomé Convention was passed by Dáil Éireann on 4th November, 1975. At that time I informed the House that legislation might be required to give effect to some provisions in the instruments. The first area in which legislation is necessary is that of diplomatic privileges and immunities.

Protocol No. 5 to the convention provides for privileges and immunities. It provides that certain named categories of persons, such as representatives of the Governments of the EEC and ACP states and members of the consultative assembly set up under the convention, shall enjoy "the customary privileges immunities and facilities while carrying out their duties under the convention and while travelling to and from the places at which they are required to carry out those duties".

It was not found possible to give effect to these immunities by order under the terms of the Diplomatic Relations and Immunities Act, 1967. This Act makes provision by which immunities can be conferred by order on international organisations of which the State becomes a member and on officials of such organisations and delegates to them. Under the Lomé Convention there are organs, such as a Committee of Ministers and the Consultative Assembly, on which all the EEC States and ACP States will be represented, but there is no organisation as such of which all the States or their Governments become members. For this reason the power to provide for immunities by order under the 1967 Act was not applicable.

This explains the necessity for legislation. Now I come to the form of the legislation proposed. It would have been possible to introduce a Bill providing only for the privileges and immunities of persons covered by the Lomé Convention. However, on the advice of the Attorney General I decided on a Bill which was wider in scope and provides that orders can be made providing for immunities whenever an obligation to grant such immunities is imposed under an international agreement to which the State or the Government is or intends to become a party.

This is desirable because it is possible that the European Communities will be making further external agreements with third countries similar in form to the Lomé Convention. Such agreements are likely to provide in many cases for aid to these countries, so making the individual member States such as Ireland necessary parties. They are also likely to provide for immunities for those involved in their implementation and administration. It would be unfortunate if ratification by Ireland had to be delayed in each individual case while parliamentary time was found to process legislation through both Houses of the Oireachtas on the relatively subsidiary matter of diplomatic immunities.

In commending this Bill to Deputies I should stress that it is really only an application of the mode of granting immunities contained in the 1967 Act. It is firmly within the principle of that Act, a fact stressed by the manner of its drafting as an additional section of that Act. There is no logical reason why it should be more cumbersome or difficult to give legislative effect to immunities for which provision is made in an international agreement to which the State is a party just because that agreement does not involve the State or the Government becoming a member of an international organisation. The safeguards under the 1967 Act will apply to any immunities granted under this Bill. An order will have to be made by the Government and this will be subject to annulment within 21 days by either House of the Oireachtas as provided by section 3 of the 1967 Act.

The convention cannot enter into force until it has been ratified by all the member States of the Community. Seven of the other member States have already done so and the remaining country, Italy, is understood to be about to take the necessary steps to do so. It is my wish, and I am sure that both sides of the House would share this wish, that Ireland ratify the convention as soon as possible. By ratifying this convention which, as the House so clearly recognised in November, marks a new and important initiative in relations with the developing countries, Ireland will once again demonstrate her solidarity with the less fortunate peoples of the world. It is essential that Ireland be in a position to fulfil all her obligations under the convention before proceding to ratification. I would therefore urge the House to vote this legislation as a matter of priority.

Mr. O'Kennedy

As the Minister has given the reasons why he is urging the House to vote this legislation through as a matter of priority, we on this side of the House are prepared to respond to that request. I would like to say at the same time that there may be aspects of the extension of the Bill which, having regard to the priority, we might not be able to consider to the extent we would like and with the limited time available to me it occurs to me that if we had a little more time we might have been able to make some suggestions, whether or not there were any grounds for some of the apprehensions we might have.

The Minister will appreciate that despite the courtesy from himself and his Department in letting me know generally this would be coming up and a copy of this Bill was delivered to my base in Dublin last night unfortunately I was not there and did not see it until about 3.30 this afternoon when I came from the country. It is important that where matters of this nature seem to be urgent and require priority to give effect to what the Minister has rightly said is the universal wish of this House and the nation we should have an opportunity of ensuring that it will be applied for that purpose and where possible to limit it to that purpose.

The Minister has indicated that we have to ratify this and to do so effectively we have to put through this legislation. Accordingly, in view of the principle behind the Lomé Convention, we are very anxious to see that our country is not seen to be impeding the implementation of the convention. If anything, we would be happier if we had known that we had ratified the provisions possibly earlier than the others. I appreciate that this delay cannot be attributed to the Minister but where the legal advisers of the Government have reason to ascertain that there may be matters they should deal with as a matter of urgency they should do so. In view of the concern which has been expressed and the part the Minister played in relation to the Lomé Convention it is rather inappropriate that we are at the tail end of the field in ratifying it. That is the first point I would like to make.

We are anxious to ensure, in so far as there is no organisation, as the Minister indicated in his opening address, which would be covered within the scope and the interpretation of the existing Diplomatic Relations and Immunities Act, 1967 in relation to the Lomé Convention, that the persons acting within the Lomé Convention, namely, from the committee of Ministers through the various agencies of the convention would be granted the same immunity, protection and status made available to other international organisations. We have had, because there is no such organisation, to couch this measure in very general terms. The proposal will enable the Government by order to make provision to enable international organisations, communities or bodies, their institutions or organs and their property and persons to have and enjoy in the State any inviolability and so forth. That is obviously very broad. It means that we have to rely on the Government for the time being to ensure that this protection and privilege will be accorded only to appropriate organisations within the Lomé Convention and indeed to appropriate persons.

When one looks at the original Act and sees the bodies that are included within the scope of that Act as organisations one finds a large number in section 16 such as the World Health Organisation, International Civil Aviation Organisation, International Labour Organisation and so on. Would it not have been possible to designate more specifically some structure or organisation under Lomé as they have been designated here? It would be in the interest of the ACP countries not in the European Community operating under the Lomé Convention to endeavour to set up a permanent structure. We became aware that there is not that institutional organisational structure in view of the necessity for this Bill. I was not aware of it at the time we were discussing the matter previously and I do not think the Minister was either although he may have been more aware of it than I was. He may have been a little more aware than I was. In my view it would have been better, for the purpose of the Lomé Convention, if there was some such organisation. It would be tidier, for the purpose of diplomatic immunity and privileges, if we could specify, as has been done in the original Diplomatic Relations and Immunities Act, 1967, the people and organisations to whom this applies and, secondly, could limit the application of that special privilege to specific organisations.

Even with the best intentions in the world and with the best supervision of the Government, there is the possibility that this could be extended, not in relation to Lomé but to any others who seek to get the benefit of this general provision, because of the likelihood that the European Community will be entering into relations with other states he thinks undesirable. I go along with the Minister in this.

This is a privilege, a protection, a special status which a state accords to the representatives of organisations or states. Every country must be assured as far as possible that this privilege will be clearly defined and tightly controlled. I would like to give some grounds for apprehension.

The schedule to the original Diplomatic Relations and Immunities Act 1967, incorporates the Vienna Convention on Diplomatic Relations. This sets the guidelines for diplomatic privilege and protection. It reads:

The States Parties to the present Convention,

Recalling that peoples of all nations from ancient times have recognised the status of diplomatic agents,

Having in mind the purposes and principles of the Charter of the United Nations concerning the sovereign equality of States, the maintenance of international peace and security and the promotion of friendly relations among nations,

Believing that an international convention on diplomatic intercourse, privileges and immunities would contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems,

That was one of the main underlying purposes of that Convention.

Realising that the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States...

The underlying principle is to encourage goodwill among nations and contribute to the development of that relationship.

We would be less than realistic if we did not recognise that since the convention was effected there have been some significant developments in international relations. I am not saying this is happening in Ireland but it is fair to say that it is a matter of judicial knowledge that many of the major powers have within their diplomatic representation people who are as much concerned with the undermining of the authority and influence of the other major powers in that country as they are with maintaining and creating good relations with the state to whom they are accredited. This poses particular problems for a small country such as ours if we have to cope with the secret service, whatever name it is called. It impedes the development of the relationship between states and imposes very significant costs on personnel and so on.

If we were in Valhalla these things would not happen, but the reality is that, unfortunately, they do. That makes it all the more appropriate when an extension of our Diplomatic Relations and Immunities Act is being discussed in this House. We should say clearly to any nations who have the courtesy of diplomatic representation here that if they want to achieve the purpose of the Vienna Convention the activities of the representatives who have diplomatic privileges and immunity should be directed towards the development of friendly relations among nations, "irrespective of their differing constitutional and social systems".

Allegations—and sometimes more than allegations—have been made in the New York Times and The London Times, and even in some of our own newspapers, that there has been an unfortunate trend over the past number of years for diplomatic representatives to become involved in secret service activities. We want to have the best and most fruitful relations with all nations. It is the peoples of the emerging nations of the African, Caribbean and Pacific countries who, I am sure, were envisaged in the original Vienna Convention. I cannot imagine anything better calculated to contribute to the friendly relations among nations and to develop the international brotherhood to which we are committed.

This Bill is concerned about this. For that reason the Minister has our support. I am not trying to raise scares; I am trying to be analytical and say with conviction that we believe the privileges accorded to representatives should be in accordance with the spirit of the original Vienna Convention. A member of the Opposition does not have the resources available to him to undertake investigations to establish breaches but there is a common knowledge— I am not talking specifically of this country now—that it would be very unusual if there were not within the diplomatic representations of the major powers here people whose main concern was not to better relations between Ireland and the major powers, but rather to vindicate themselves by reference to special Secret Service activities in which they engage in these countries. That is regrettable but it is one of the reservations I have about persons and the extension under this.

I would be interested to hear from the Minister if there is any indication that there will emerge under the Lomé Convention a structure which would qualify under the organisation as set out originally in the Act and which would enable us in special circumstances to amend or delete this portion which has now been added and which is necessary for the purpose mentioned by the Minister.

A brief perusal of the original Diplomatic Relations and Immunities Act indicates that where possible, one does and should identify the organisations to whom this privilege is being accorded. It is no harm to give an indication of the nature of such organisations and to read them out as defined in section 16. These are the organisations to which Part IV of the Act applies: the World Health Organisation, the International Civil Aviation Organisation, the International Labour Organisation, the Food and Agriculture Organisation of the United Nations, the United Nations Educational, Scientific and Cultural Organisation, the International Bank for Reconstruction and Development, the International Monetary Fund, the Universal Postal Union, the International Telecommunication Union, the World Meteorological Organisation, the Inter-Governmental Maritime Consultation Organisation, the International Finance Corporation, the International Development Association. There are other organisations of which we have been a member for some time and which are better known to us in international relations, such as the Council of Europe, and the special provisions for that are related here. Part VI of the Act deals with the European Council for Economic Co-operation and Development. Part VII of the Act deals with international councils. Therefore it seems that the ideal thing is to identify the organisations with which we are concerned, and I would be happy if it would be possible in future to do that.

There is no activity before this House which we more fully support than that which is promoted under the Lomé Convention. There are no persons or bodies to whom we would more readily accord the privileges of diplomatic immunity than those persons and bodies operating under that convention. While I may have used the occasion to make some other references, it is only because of the general extension and the nature of the extensions that have become necessary. I should like the Minister to indicate if some institution will come into being which will enable us to specify the particular organisation here, and in my view having had only a limited period to look at this legislation, enable us at some time in the future, to delete, by way of amendment, this particular amendment.

Minister for Foreign Affairs (Dr. FitzGerald)

I recognise it is unsatisfactory for the Opposition that the text of the Bill was available to them only last night. The difficulties arose for several reasons. First of all, a doubt existed initially as to whether in fact legislation was necessary. The reason it is necessary is that on reflection it emerged that the European Communities Act does not cover this matter in part at any rate because the provisions of the Lomé Agreement cover matters outside strict Community competence, for example, aid. Therefore it was necessary to establish if there was a need for legislation or whether the European Communities Act covered it or not, and this involved a difficult legal point which had to be dealt with.

Secondly, even if legislation was needed, a question arose whether legislation had to be introduced in advance of ratification or whether one could ratify with a slight reservation or a declaration and legislate subsequently, which would have enabled us to ratify earlier and leave the legislation over so that it was not handled in a rushed way. This, it was eventually established at discussions in Brussels would not have been acceptable for a reason which, I think, is partly political rather than strictly legal, that there was a danger that if EEC countries ratified with reservations, even in our case, of an entirely technical character, this could have provided a precedent for other countries, ACP countries, to ratify with reservations of a much more significant character. It was only when the political objection, if I may call it that, to proceeding in that manner became clear, that the need for legislation arose. The third reason was that, as the House is aware, another Bill is before the House, which we shall be dealing with shortly, and a question arose as to whether the two Bills should be one or two and a question also arose as to whether other matters unconnected with Lomé should or could be dealt with under the other Bill. These are all considerations which delayed action on this and have led to the unsatisfactory position that the Deputy did not have the Bill before him until last night, and I very much regret that the cumulative effect of these was to produce that result.

I shall not develop the theme the Deputy spoke on recently, the possibility of people with diplomatic privileges abusing them. This possibility clearly exists. There is evidence that in parts of the world at certain times this has happened. If there was ever evidence of this happening here we would take the obvious and appropriate action in regard to it, but I would hope we would never have to face that situation.

As far as this Bill is concerned, the probability is somewhat remote, because there are unlikely to be any permanent representatives of the organs of the Lomé Convention here anyway; and indeed it would only be rarely that officials covered by diplomatic immunity or parliamentary representatives would be visiting here. In fact, when I raised the question as to whether, as I said, we had to have legislation before ratification, given the improbability of a situation arising that somebody would be here and park his car in the wrong place or do something like that, legislation was thought to be necessary. I do not think the broader question raised by the Deputy arises on this Bill, but it is something which in other contexts we have to keep an eye on.

The Deputy asked whether I thought that an organisation might emerge from the Lomé Convention which would render superfluous this provision here. I do not think that will happen. The Lomé Convention, being a successor agreement to the Yaoundé Convention and several agreements of this kind, has evolved in negotiations between the Community and a growing number of countries in Africa, the Caribbean, the Indian Ocean and the Pacific. A feature of the development of this arrangement between the Community in its original smaller form and these other countries, and now the enlarged Community and the wider number of countries, has been a movement away from too close an association in both the general and the proper sense of the word "association" between Europe and these countries.

The Deputy will be aware that the old arrangement under the Yaoundé Convention was known as an association and the organs were referred to as organs of the association, although I do not think that organisation, as it existed, constituted an organisation in the proper sense of the word. There was this concept of an association. A feature of this agreement has been the disappearance of this word. Although a number of our partners in the Community were anxious that it should be kept, there was a very strong sentiment amongst the ACP countries, and particularly among the new members on the ACP side, that the word "association" should not be used and that the relationship between these countries and the EEC should not be described as one of association. They wished it to be a more general and looser arrangement.

Some of them saw in the word "association" some vestige of neocolonialism, perhaps, and one of the features of the negotiations was their rejection of the use of this word. So, in fact, the movement is away from a rather close integration which theoretically could have become closer and developed towards an organisation. It is away from that towards a looser relationship. I do not see any likelihood that the EEC and ACP countries together would come to constitute an organisation as such. If anything, the movement is in the other direction.

Not only is the Bill necessary, but it is likely to remain necessary for reasons which I must say I can appreciate. I can understand the feelings of these countries. I was not disposed as Irish Foreign Minister to press them on this issue of the word "association", although it was something which our partners thought important and which I had to raise as President of the negotiations. I do not think the evolution will be in that direction.

The Deputy spoke of the desirability of identifying the organisation. I was not quite sure what he meant. At present there is not an organisation to identify. If he means the organs or persons in question, of course these will have to be identified within the order to be made. The procedure laid down here is entirely within the framework of the original Act, but allows for the situation where there is not an organisation but where there are people who have to be covered by diplomatic privilege. Because we cannot exclude the possibility—although there is no immediate likelihood of it —of other arrangements similar to this being entered into between the Community and countries in other parts of the world, it seemed better to draft the Bill in general terms, rather than to relate it specifically to the Lomé Convention.

Of course, in every instance the Dáil will have an opportunity to approve the international agreements which will give rise to the need for these immunities and, following that, it will have an opportunity to seek to annul an order made which must, of its nature, specify the organs or persons to be covered by diplomatic immunity. These safeguards will ensure against any possibility of abuse, and ensure that the Dáil has its proper role in determining whether it wishes to accept agreements of this kind, or whether it wishes under these agreements to extend diplomatic immunity to the persons or organs in question.

These seem to me to be the main points raised in the discussion. If there is anything I have overlooked, or any other points which the Deputy would like to raise, I should be happy to deal with them. I think I have dealt with the points raised. I should like to thank him for his courtesy in facilitating us on this matter. It is of practical importance because if, as we understand to be the case, the Italian Parliament, even in the absence of a Government, holds the necessary emergency session to carry through the necessary legislation and to ratify it by the end of the month, had we failed to do so, the coming into force of the convention would have been held up for a month. It is not just a question of a day, or a few days. It comes into force on the first day of the second month after ratifications have been completed. So there is a practical issue of a whole month involved here. As the Deputy said, we would prefer to have been among the first to ratify. We certainly did not want to be the last, and we certainly did not want to be the last holding up the coming into force of the convention. That is why it was necessary to proceed in this way.

There is one final point which, perhaps, I might make. The need for this legislation derives from the fact that the convention covers matters outside the strict Community competence. Because of the fact that our European Communities Act is very tightly drawn, we require legislation. I understand that the British Act is more generously worded, despite the greater hesitations of the British Parliament and people in the matter of EEC membership. It enables the British Government to act by order. They do not require legislation. The vigilance of Parliament here, the representations of the then Opposition in the debate on the European Communities Bill, and the willingness, be it said, of the Government of the day to facilitate the Opposition in ensuring that Bill was tightly drawn, all that happened four years ago, made this legislation necessary. This is an indication of the way in which the vigilance of Parliament ensures that Parliament in the long run has more work to do. Perhaps that is not a bad thing and it is better that we should ensure that Parliament has tight control in these matters.

Question put and agreed to.

Agreed to take remaining Stages today.