Treaty of Amsterdam: Motions.

Mr. Dardis

I move:

That Seanad Éireann approves the exercise by the State of the option, provided by Article 3 of the Fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council that it wishes to take part in the adoption and application of the following proposed measure:

a proposal for a Council decision concerning the signing of the agreement between the European Community and the Government of the Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorisation,

a copy of which proposed measure was laid before Seanad Éireann on 21 May 2002.

An Cathaoirleach

I welcome the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, to the House and congratulate him on his appointment.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I reciprocate by endorsing the messages I have heard in the House over a long period of time of sentiments of warm cordiality towards you, a Chathaoirligh, having completed 21 years of public service, for your patriotism, commitment and involvement in the democratic process. On behalf of the Government, I thank you for all your efforts on behalf of Seanad Éireann and Irish democracy. I echo the warm sentiments expressed in relation to a number of Members of Seanad Éireann who have indicated that today's proceedings probably mark their last day as Members of the House. I thank them most sincerely for all they have done in the interests of democratic life.

I thank the House for making time available to discuss the exercise by the State of the option under the Fourth Protocol to the Treaty of Amsterdam on proposals for Council decisions regarding the signing and conclusion of a readmission agreement between the European Community and the Government of the Hong Kong Special Administrative Region of the People's Republic of China. As this is my first time appearing in Seanad Éireann as Minister, I take the opportunity to point out the importance of the role of the Oireachtas in the scrutiny of European Union business. I look forward to the contribution which this House makes to proposals such as these.

The subject of the agreement with the Hong Kong Special Administrative Region is the readmission of persons residing without authorisation. This is a matter which arises under Article 63 of the treaty establishing the European Community and is part of Title IV of the treaty which was added by the Treaty of Amsterdam in 1999. Title IV deals with measures in the area of visas, asylum, immigration and other policies related to the free movement of persons. The Amsterdam treaty conferred powers on the Community in the field of readmission.

The application of Title IV to Ireland is subject to the provisions of the Fourth Protocol to the Treaty of Amsterdam. Ireland is not automatically a participant in measures under Title IV unless we exercise an option provided for in the protocol. Under the terms of the protocol, Ireland has three months from the date of presentation of a proposal to the Council to exercise the option to take part in the adoption of the proposed measure. It may also exercise the option at any time after a measure has been adopted by the Council. Article 29.4.6 of the Constitution provides that in order to exercise the option, the prior approval of both Houses of the Oireachtas must be obtained and I am here with a view to seeking that approval.

There are two Council decisions proposed and therefore there are two motions before the House. One decision concerns the signing of the agreement and the other concerns the conclusion of the agreement by the Council. As the subject matter of both these proposals is the same, I propose to deal with both matters together.

Readmission agreements are a significant feature of international co-operation in the field of immigration. A readmission and return policy is recognised internationally as an integral and vital element in the fight against illegal immigration. Ireland has been aware of the need for such agreements and in recent years has negotiated a number of bilateral readmission agreements. To date such bilateral readmission agreements have been signed with Romania, Poland, Nigeria and Bulgaria. The proposed Community readmission agreement with the Hong Kong Special Administrative Region which is before the House today is the first such agreement to be negotiated to a conclusion by the European Commission on behalf of all member states. The exercise of the option in the motion will allow Ireland to be a party to the agreement.

Community readmission agreements form part of the European Union's broader aim of developing a balanced, coherent and common approach towards immigration and asylum. Apart from Hong Kong, to date the European Commission has been authorised to negotiate readmission agreements with Russia, Morocco, Pakistan and Sri Lanka and the Special Administrative Region of Macau. The readmission agreement with Hong Kong will be the first to enter into force.

I fully support the view that the return and readmission of third country nationals who are illegally resident in the EU must be an integral part of our common immigration and asylum policy. Readmission agreements involve reciprocal undertakings by the European Union and third country partners to co-operate over the return of illegal residents to their country of origin.

The comprehensive approach which has been put forward focuses on the adoption of common procedures for the legal admission of third country nationals. However the European Commission has emphasised that these policies must be accompanied by measures to combat illegal migration and in particular smuggling and trafficking of humans and the return of persons who are illegally present in the EU. In its recent Communication on the Common Policy on Illegal Immigration, the European Commission underlined that the return and readmission of third country nationals who are illegally resident in the EU must be an integral part of the common policy.

I will outline the principal features of the agreement and it should be noted that the readmission obligations set out in the agreement are drawn up in a fully reciprocal way. Article 2 states that Hong Kong shall readmit its permanent residents and former permanent residents provided that they are validly shown to be so. Article 3 states that Hong Kong shall readmit persons of another jurisdiction under certain specified circumstances. The obligation to readmit persons of another jurisdiction arises where at the time of entry into a member state such persons held a valid visa or residence authorisation issued by Hong Kong or having entered the territory of Hong Kong, they proceeded to enter unlawfully the territory of a member state. Article 4 deals with the readmission by member states of the Community of their own nationals. Proof of nationality or former nationality is required and, if necessary, the member state concerned shall issue a travel document. Article 5 provides that a member state shall readmit persons of another jurisdiction in specified circumstances and shall provide, as necessary, a travel document.

Articles 6 to 11, inclusive, contain the necessary technical provisions regarding the readmission procedure – readmission application, means of evidence, time limits, etc. Articles 12 and 13 concern transit operations. Articles 14 to 16, inclusive, contain the necessary rules on costs, data protection and the non-affectation of other international rights and obligations applicable to the parties. Article 17 states that a readmission committee shall be set up to, among other things, monitor the application of the agreement and implementation procedures. Article 18 empowers member states to conclude bilateral implementing protocols with Hong Kong. The relationship between such implementing protocols and the agreement is clarified in Article 19. Articles 20 to 22, inclusive, contain the necessary rules on entry into force, duration, termination and the legal status of the annex to the agreement.

Ireland has a long history of legal migration from Hong Kong and from China in general and the number of people coming here has been increasing in recent years. There were almost 12,000 Chinese nationals resident in the State in 2001, almost double the number in 2000, while the number from Hong Kong was approximately 500 in 2001. Chinese nationals come here mainly as workers and as students and they make a significant input to the economy. In this regard, almost 1,000 work permits were issued in respect of Chinese nationals in 2001.

In recognition of the significant number of Chinese nationals who seek to enter the State, my Department has recently posted visa processing staff to the Irish Embassy in Beijing. This will improve the service being provided to Chinese nationals who wish to come to Ireland. The existence of the proposed readmission agreement with the Hong Kong Special Administrative Region is not expected to have any significant effect in Ireland where the incidence of illegal immigration from Hong Kong is low.

It should also be noted that the existence of a readmission agreement does not affect the consideration of the merits of any claim from an individual for leave to remain in the State. In any individual case where deportation is being considered, the provisions of section 3(6) of the Immigration Act, 1999, will apply. This section sets out a range of factors which the Minister must consider before a deportation order is made. The return of an asylum seeker would also be subject to the provisions of section 5 of the Refugee Act, 1996, as regards the prohibition of refoulement or the return of the person to possible persecution.

I commend these motions to the House. The development of a return policy, of which readmission agreements form an important part, is a vital element in the development of a common immigration and asylum policy at European Union level.

Mr. J. Doyle

I propose to share my time with Senator Norris.

An Leas-Chathaoirleach

Is that agreed? Agreed. I remind Members that we are discussing Nos. 2 and 3 together.

Mr. J. Doyle

I welcome the Minister on his first visit to the House. It is my last day here and although our political careers have criss-crossed a number of times, we are here today for a parting of the ways.

I thank the Minister for outlining the protocols behind these motions. It is interesting to note the number of Chinese nationals now residing in the State. It is remarkable that ours has become an international state given the large number of Chinese and other nationals living here. I am fully in agreement with these motions and I thank the Minister for outlining them to us.

Mr. Norris

I thank Senator Doyle for sharing his time and I welcome the Minister. It is splendid to have him in this position, which was a most imaginative appointment by the Government. He can only do good for a Department which needs his attention urgently.

I have some problems with these motions, which the Minister would probably expect from me as a wet, woolly liberal. The Minister mentioned 12,000 Chinese nationals in the State in 2001, almost double the number in 2000. By simple mathematics that means 6,000 Chinese came here in one year. That is a significant number and makes them one of the principal contributors to our immigrant population. Many of them work very industriously here and have made themselves at home in our society, but the Minister has not said how many are present legally and how many would be contemplated under this provision. The Minister should give us some information on how many people out of this 12,000 are likely to be returned.

This may not be directly relevant to these motions but I express serious concern about the housing afforded to these people while their cases for staying here are being processed. A number of the places where these people are housed break every possible by-law, fire regulation and health and safety provision. That is appalling and the Government should not stand over it.

I am also concerned by the situation of Dae Dong Xhue, a member of the staff of Trinity College, who returned to China and was grabbed by the authorities there because he is a practitioner of Falun Gong. People in this country do not realise the extent to which the Chinese Government has hammered the Falun Gong adherents. My understanding is that over 400 have already been killed. Does the Chinese Government accept and admit that fact? The real figures are probably considerably greater. Given that the ethos of Falun Gong is about spreading moderation, tolerance, peace and so on, a government which is seriously concerned about it and regards its members as terrorists has many questions to answer. I am concerned about this fact.

I do not like the idea of the creation of a fortress Europe but I know this is the way the European Community is going. I am glad that it was recently persuaded not to impose severe penalties on some of the most impoverished Third World countries. I understand that Ireland played a role in persuading the other European countries that making the situation worse in these countries creates further ways of justifiable and understandable migration.

The Minister said: "Articles 14 to 16 contain the necessary rules on costs, data protection and the non-affectation of other international rights." I am curious to know if that is a legal term or, perhaps, it is a usage with which I am not familiar. The word "affectation" strikes me as only slightly different. Perhaps it means that it does not affect these other rules and demonstrates that they are immune from contamination in some legal sense. It may be a perfectly justifiable and proper use of the word "affectation", but it seems a slightly strange use in that sense. Although I oppose this legislation and would certainly wish to raise strong queries about it, I am glad we have someone of the fine intelligence and legal wisdom of the Minister to guide this and other legislation through the House.

Mr. Walsh

I welcome the Minister, congratulate him on his appointment and wish him well in what will be onerous duties. I am sure he will distinguish himself in this Department as he has done throughout his political career.

I welcome the protocol. It is essential that this area be regulated and that there is a balance, as Senator Norris has said, by way of ensuring that people have certain rights and access to the asylum seeking process. Ireland has a long history of emigration. Countries that welcome their immigrants have, to some extent, set an example for us. As a small nation we are glad to be in a position, economically, to play our part in this regard. That is one of the reasons Ireland is an attractive location. This type of international co-operation is essential. Given that there appeared to be little control some years ago on the refugee issue, we have initiated these bilateral agreements which have worked well for certain countries, particularly those in the former eastern bloc and Nigeria. In this regard it was a step in the right direction.

We have a developing relationship with China and our trade imbalance is being addressed. That level of co-operation, with the exchange of embassies, is further advanced by means of this agreement. An area that should be looked at is the cost aspect implied in certain instances because of the return of some refugees. I presume it is incumbent on the Department to ensure return procedures are in place which will stand a greater cost effectiveness test than may have been the case in some relatively recent high profile cases. Notwithstanding that, it is not an easy area with which to deal. Therefore, I understand certain issues will arise which may give rise to excess costs and if they are not dealt with, and seen to be dealt with, firmly, there is an open invitation to breach the regulations.

The number of Chinese nationals in the State per thousand, to which Senator Norris referred, seems high. The Chinese community, as has been rightly acknowledged, has played a significant role in the catering and other areas of the economy.

Mr. J. Doyle

And in the betting business.

Mr. Walsh

I am sure it will continue to do so. I welcome the protocol. This Minister has flagged that it is probably the first of a number of protocols that will come before us regarding other countries from which there are a growing number of immigrants in our midst. It is good that Ireland is becoming multicultural but it is essential that it is done in a controlled way. Given that the global economy is changing it is imperative from the racism point of view that it is regulated and does not give rise to anti-racist sentiments which would be unwelcome and must be avoided at all costs.

Mr. Ryan

I join my colleagues in welcoming the Minister. He is a significant figure in Irish politics and one I respect enormously, but I am not sure I agree with him about much. There are certain areas where we would agree. He is somebody I like and somebody for whom I have great regard. He is a person of considerable ability but I suspect that over the next five years, if I am still here, we will have more disagreements than agreements. However, it will be a pleasure to debate with him because he is a figure of substance whose absence was not good for Irish politics. I say that genuinely as one who would disagree with him on most things as he will discover in the next two minutes.

I have no objection to the principle involved in this protocol, but if we have illegal immigration there has to be a sensible and efficient way of returning these illegal immigrants to the countries from which they came. Nobody could disagree with that. In any political debate about this issue it is extremely important to talk about the immigration hysteria which is gripping Europe. The fact that there is much talk about immigration and that certain parties have used particularly offensive language about it, is no reason to do what those parties wish.

A political representative from my constituency in Cork disgraced his reputation, that of his party and politics by some of his comments during the past six months. This may have saved his seat but it did not do much for politics. To the credit of his party colleagues he was left alone on the issue and was criticised fairly bluntly by others. That was the right thing to do. People like that need to be dealt with and confronted because the issue is not immigration per se. The issue is the perception that the poorest in society are losing out because of the presence of immigrants in their midst. We must begin by making it perfectly clear and doing what is necessary to ensure that is not the case because that eliminates the single biggest cause. Many of those I know in Cork who would be inclined to talk about immigration, particularly over a few pints, would be the first to complain if their local Chinese takeaway was closed when they were going home from the pub.

Mr. Dardis

They want Irish Chinese takeaways.

Mr. Ryan

Such people can quite happily contradict themselves in the one sentence about foreigners taking over the country.

The political parties all over Europe are quite different from each other. Pim Fortuyn found Jean Marie Le Pen to be among the most repulsive for, among others, his attitude to the homo sexual community because Pim Fortuyn was an active and vocal gay person. Therefore, it cannot be done.

The second point I want to make about immigration is that I am astonished that much of the hysteria politically about immigration – I am not talking about the Minister – comes from parties on the political right. The fundamental force driving illegal immigration is the force of the marketplace. Most of those on the political right would tell me I am naive to believe that one can buck the market. What is actually creating illegal immigration throughout the world is the fact that there is a surplus of labour in one country and an increasing shortage in many others. Unless we get a balance in the labour market worldwide, we will not deal with the fundamental causes of the problem. That is the reason I am glad that the nonsense my colleagues in the British Labour Party were coming up with about threatening to reduce development aid further was not pursued because the real remedy is to provide opportunities at home.

We have always found that we do not have to perform as well as the United States. All we have to do is give people the opportunity to make a reasonable living at home and the flood of immigration will stop. In the 1960s we were moderately prosperous, but wages here were spectacularly below those in the United States. Once we have some prospect of work here our levels of emigration drop dramatically because people do not want to leave home. The fundamental issue we need to address is the hysteria and the pressures created by the one-sidedness of the world labour market.

In my period as a member of the Joint Committee on European Affairs I met the parliamentarians of a number of applicant countries and asked each of them about the areas of greatest difficulty in terms of negotiating their accession agreements. One was the issue of the free movement of labour and the fact that the European Union was attempting to negotiate long transition arrangements before their populations would be allowed to move freely within what are the current boundaries of the European Union.

It is about time that issue was dealt with, not on the basis of fears, prejudices or the nonsense of Herr Haider in Austria, but on the basis of the evidence of significant other cases, particularly in Spain and Portugal, where the mass migration about which many were talking once Portugal joined did not happen. There was no dramatic change. We are creating bad feeling in the populations of countries like Poland and the Czech Republic by telling them we are afraid to open our borders to them in 2004 because they will flood the labour markets of Germany, Austria and the other countries on the margins of the area to which we will expand.

The very fact that Governments collectively in the European Union are negotiating from a position of hostility to the movement of labour is a further affirmation of the hysteria about migration with which we should be dealing. It is possible to work out whether there is serious evidence for that hysteria, but I expect that those countries will prosper economically once they join the European Union because of the various access they will have to markets and also the assistance the European Union will give them. There will not be a huge flood. Not only will the European Union's insistence on making their membership conditional on a long transition period not do any good, it will also do harm by feeding the hysteria that we are near to a flood of huge numbers who will work for virtually nothing throughout Europe. That was said about us in the past and it is being said intermittently about us on the neighbouring island. It was said intermittently about the Portuguese and the Spaniards when they joined the European Union and now it is being said again. That is creating the climate in which the extreme right attitude to immigration can operate. I invite the Minister, with the influence he now has, to ask people to at least be balanced on the question of the free movement of labour in the accession countries because I know from listening to parliamentarians from most of those countries that it is both a nuisance, an irritant and one they regard as quite offensive.

I would welcome this motion except for the fact that I am uneasy about the climate, culturally and politically, in which matters like this are being dealt with.

Mr. Dardis

It is a matter of particular pleasure for me that my Progressive Democrats Party colleague, Deputy McDowell, is present in his capacity as Minister for Justice, Equality and Law Reform. I congratulate him on his appointment, which is well merited, and I am pleased that Senator Ryan had enough confidence in the Government to suggest that it would be in office for five years during which time he could debate these issues.

Mrs. O'Rourke

He wants to be here for five years himself.

Mr. Ryan

I believed that the last time. I thought the Senator would be here for five years the last time.

Mr. Dardis

With regard to the motions before us, it is essential that agreements of this nature are in place, on a bilateral basis or otherwise, because the absence of such agreements feeds some of the misinformation and xenophobia that is becoming increasingly prevalent. Neither the Minister nor I, or anybody in the House, would subscribe to some of the statements made before and during the course of the general election campaign. An essential element is that there is not a limbo period after due process, in other words, when all the procedures have been gone through there is then a formal system whereby people can be repatriated to the countries from which they came.

With regard to the remarks made by Senator Norris on the Falun Gong, they fall into a different category. It is important that we distinguish between refugees, asylum seekers, illegal economic immigrants and so on because they are different categories, yet they appear to be lumped together into the one group. That feeds the misinformation and the xenophobia to which I referred.

I had the good fortune while at university to share a room with a citizen of Hong Kong who held a British passport. When the colony was being returned to China he regarded it as desirable to leave Hong Kong and came back to live in Ireland. He received all his secondary school and third level medical education in Ireland, yet found it extremely difficult to get citizenship. I accept that citizenship is a totally different matter from the matters before us today, but given his circumstances – they were eventually taken into account by the Department of Foreign Affairs – it would have been desirable to facilitate him to a greater degree than was the case. It would be wrong for somebody in that circumstance to find himself or herself in a situation where he or she might have to return to his or her country of origin, particularly given his or her educational background here.

I want to ask a question about Article 2 which states Hong Kong shall readmit its permanent residents and former permanent residents provided they are validly shown to be so. Article 3 goes on to deal with visas and so on. I am interested in knowing if there are ways, other than through visa travel documents, whereby the validity of their permanent residency in Hong Kong can be shown? Perhaps the Minister will elaborate on that. I believe fundamentally that the absence of agreements of this nature contributes to hysteria, xenophobia and misunderstandings, which can be used to feed organisations and individuals who have wrong motives and do not wish to see individuals of another ethnic origin or colour residing in our midst.

An Leas-Chathaoirleach

I join other Senators in welcoming the new Minister for Justice, Equality and Law Reform, Deputy McDowell, to the House and I wish him well in his new brief.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I thank you, a Leas-Chathaoirligh, for those remarks. I refer to Senator Doyle's remarks. We have criss-crossed on occasion but we are rarely in the same place at the same time. This is one of those occasions where we will be together for a few minutes. I pay tribute to him for his service to the State in this House, the Lower House and in municipal politics over the years. I wish him and his wife, Peggy, who are good friends of mine, every happiness in the post-parliamentary phase of his public service life. May the rest of his public service long continue.

I share Senator Norris's worries about the Falun Gong and the way they have been treated. One of the disturbing features of this is that up to recently they were given freedom of action in the Hong Kong special region but there is evidence of pressure from the remainder of the People's Republic of China, which has resulted in arrests and repression in Hong Kong. That is a matter about which I am concerned.

The Senator questioned the use of the term "non-affectation". I defer to him on matters of affectation but the term "non-affectation" is not of my making as it is to be found in the text of the document. It derives from the linguis juris section of the European Council. It is a term of art in European law. “Non-affectation” means that somebody is not adversely affected.

Senator Ryan made a number of points which deserve a response. I agree it is important that we should not contribute to an atmosphere of hysteria. The figures I mentioned earlier show there are more than 12,000 Chinese nationals resident in Ireland, but this must be balanced against the fact that a handful have claimed refugee status here. Only one person claimed refugee status a year ago while the figure is now 25. It is, therefore, wrong to view the Chinese presence in Ireland, which is so enriching of our community, in the context of seeking asylum or refugee status. The great majority of Chinese nationals or Hong Kong residents are here legally, whether as students or workers, and they play an important part in the life of the country. I agree with the Senator, therefore, that it is important to avoid urban myths. Chinese nationals do not deprive anyone of anything and they play an important part as students or workers or both in our economic and social life. They should not be looked upon in an adverse or negative way.

Senator Dardis asked how it can be proved that individuals are nationals or permanent residents in the EU or Hong Kong. Prima facie evidence of proof for Hong Kong residents comprises either a Hong Kong Special Administrative Region passport, Hong Kong certificate of identity, Hong Kong permanent identity card or official documents indicating permanent residence. This will not be hidebound in legalities. The agreement contains sophisticated methods for resolving disputes that may arise about an individual's nationality.

I thank Senators who contributed to the brief debate on this measure. Many people may not consider it to be of major importance but if we do not have a system of repatriation of people who are in Ireland unlawfully, it will feed the very myths to which Senator Ryan referred. Remarks such as there is no way of getting rid of them when they are rejected or similar terms which are the coinage of loose, ill-informed and damaging conversation generate an atmosphere of resentment.

I thank Members for their kind remarks about myself and for their support for this measure. I assure those who are worried that repatriation is not being put at the top of agenda to lead public opinion towards repatriation as an end in itself, but because if we believe in the rule of law and according asylum seekers their rights under national and international law, we must also uphold and introduce effective laws for those who, when they are afforded due process, are found not to be entitled to remain in our territory.

Question put and agreed to.

Mr. Dardis

I move:

a proposal for a Council Decision concerning the conclusion of the Agreement between the European Community and the Government of the Special Administrative Region of the People's Republic of China on the readmission of persons residing without authorisation,

a copy of which proposed measure was laid before Seanad Éireann on 21st May, 2002.

Question put and agreed to.

Mr. Dardis

I move:

That Seanad Éireann approves the exercise by the State of the option, provided by Article 3 of the fourth Protocol set out in the Treaty of Amsterdam, to notify the President of the Council of the European Union that it wishes to take part in the adoption and application of the following proposed measures:

proposal for a Council Regulation on a European Enforcement Order for uncontested claims; and

proposal for a Council Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No. 1347/2000 and amending Regulation (EC) No. 44/2001 in matters relating to maintenance,

copies of which proposed measures were laid before Seanad Éireann on 7th June, 2002.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I thank the Senator for moving the motion. The motion relates to the exercise by the State of an option, which we must have, to take part in the adoption and application of the proposals for a Council regulation creating a European enforcement order for uncontested claims and a Council regulation concerning juris diction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. These measures were presented by the European Commission on 13 May and 15 May last respectively.

Senators will recall that these are measures to which the fourth protocol of the Amsterdam Treaty applies. Under that protocol we have a three month period within which to notify the President of the Council of our intention to opt into discussions from the beginning. Those periods will expire on 14 and 16 August respectively and it is, therefore, essential if we are to opt into the negotiation process leading to those regulations coming into effect that we should signify our consent and obtain the approval of both Houses before the summer recess.

I apologise to Senators who feel they have not received adequate notice of the motion or who would have preferred a longer debate, but the sequence of events which led to this time limit coming into effect was beyond my control. I consider it highly desirable that the Houses of the Oireachtas should have an enhanced role in scrutinising measures such as those before us. I am, therefore, more than willing to facilitate the Houses in looking again at these measures when the negotiations on them have advanced. The modalities for such scrutiny can be worked out later when the Houses of the Oireachtas have organised and established a committee system to give life to the process of parliamentary scrutiny. I want to put on record the Government's firm commitment to giving the Houses a full part in the vital process of democratic accountability in EU matters. When exercising options under the EU treaties, especially options which have a potential constitutional dimension such as this afternoon's business, it is vital that the Houses of the Oireachtas should be fully involved and fully aware of the implications of the proposals.

As part of a new, inclusive approach to EU affairs, the Government is committed to strengthening parliamentary scrutiny both by debates in each House and by ongoing interaction and information at sessions of Oireachtas committees on EU affairs. We will not push far-reaching measures through the adoption and scrutiny process "on the nod". To do so risks fuelling a sense of alienation and hostility based on a public perception of a democratic deficit in Ireland's approach to EU affairs.

Today's debate marks a clear statement by my Department and the Government that we are determined that these matters should be approached in the future on the basis of positive partnership between the Executive and legislative organs of Government established under our Constitution. The particular measures which we are discussing have to be seen against the background of the development at EU level of measures geared towards the enhancement of judicial co-operation in civil matters. The overrid ing aim of this development is that of making access to justice easier for the individual litigant.

In that context, a programme of measures to implement the principle of mutual recognition of decisions in civil and commercial matters was adopted in November 2000 by the Justice and Home Affairs Council. It aims ultimately at the abolition of the current system where, in order for a judgment given in one EU country to be enforced in another, a declaration of enforceability must be first sought from the courts of the country where enforcement is to take place. In very broad terms, what this means is that a judgment obtained in Ireland ultimately could be enforced in Madrid in much the same way as a judgment obtained in Dublin can now be enforced in Donegal. It should be noted that a number of measures which link in with the programme have already been brought to the attention of the Oireachtas and have already been adopted.

The first is the proposed Council regulation for a European Enforcement Order, EEO, for uncontested claims. One of the proposed regulations which we are considering today creates an EEO for uncontested claims. The EEO is intended to facilitate the rapid recovery of outstanding debt which is essential for the proper and effective functioning of the Internal Market.

The proposal focuses on the elimination of intermediate measures which at present are a prerequisite for enforcement in one member state of a judgment that has been obtained in another. The proposal addresses the incongruity of delaying, for administrative reasons only, enforcement of a judgment concerning a claim that has not been disputed. Claims, for the purposes of the proposal as presented, are limited to pecuniary claims for specific amounts, irrespective of the amount at issue. In Irish legal terms that would be called liquidated damages. The term " uncontested claim" is also defined in the proposal.

Before a judgment on such a claim can be enforced it is proposed that it must be the case that either no appeal is possible against the judgment or that the debtor has not made use of the possibility of lodging such an appeal within the time limits for doing so. The text proposes that an enforceable judgment on an uncontested claim must be certified as an EEO at the request of the creditor. For this to happen the claim must meet certain requirements such as no appeal being possible and the documents must have been served on the debtor in such as way as to guarantee a fair trial.

It is proposed that the EEO certificate will contain a transparent and standardised summary of all the facts that characterise and individualise the content of the judgment and which are indispensable for enforcement. The certificate will also contain comprehensive information to the effect that the requirements for eligibility for certification as an EEO have been met.

It is envisaged that an appeal against the grant of a certificate itself will be excluded under this proposal. The reasoning behind this is that if the debtor wants to prevent a EEO certificate from coming into existence, he or she has to contest the claim and thus remove it from the scope of application of this proposal. If the claim remains uncontested, upon application by the creditor, it is up to the court of origin to examine the judgment to ascertain if it fulfils the requirements for certification. In this context, the court will be aware that there will be no possibility to appeal against the resulting decisions.

Before a judgment becomes enforceable, that is, while an appeal is still possible, it is proposed that the judgment may be enforced provisionally. Such an enforcement certificate is reversed if the judgment is overruled on appeal. The system of granting provisional enforceability strikes a delicate balance between the interests of the creditor in swift enforcement and the interest of the debtor in avoiding potentially irreparable damage if the loss incurred due to provisional enforcement cannot be recovered.

It is considered to be a major advantage of the process which is being proposed that certification of a judgment as an EEO is done by the court of origin familiar with the case at issue and the procedural rules that have applied and that no judicial or other authorities of the member state of enforcement need to be involved.

In relation to the proposed Council regulation on judgments in matrimonial matters and in matters of parental responsibility, this proposed regulation is in fact a consolidated text which combines three other proposals which have already been the subject of motions before both Houses. Thus, there is nothing of substance in the scope of the current proposal which was not in those into which we have already opted.

The first such proposal, commonly referred to as the Brussels II regulation, came into force on 1 March 2001 and sets out rules on jurisdiction, recognition and enforcement of judgments on divorce, separation and annulment as well as judgments on parental responsibility for the children of both spouses given on the occasion of such matrimonial proceedings. In July 2000, France presented a proposed regulation aimed at dispensing with the need to go through any specific procedure in the state where enforcement is to take place in the case of a decision on parental responsibility that concerns rights of access to children.

The scope of this initiative was confined to decisions covered by Brussels II. The narrow scope of this proposal led to criticism on the part of many member states, including Ireland. Subsequently, the Justice and Home Affairs Council decided that work on this initiative should be pursued in parallel with the extension of the scope of Brussels II so as to guarantee equality of treatment for all children. This led, in September 2001, to the presentation by the Commission of a further Council regulation dealing with jurisdiction and the recognition and enforcement of judgments on matters of parental responsibility.

This proposed regulation has two elements. First, it takes over, unchanged, the provisions on matrimonial matters from the Brussels II regulation and Brussels II is, in consequence, proposed to be repealed. Second, it integrates into a complete system of rules on parental responsibility the provisions on parental responsibility of Brussels II, the Commission proposal on parental responsibility and the French initiative on rights of access. The Commission's justification for this approach is that having a single instrument in this area will facilitate the application of the law by judges and practitioners and will serve to promote the simplification and coherence of community legislation.

The main provisions which concern parental responsibility are as follows. The regulation is to apply to all civil proceedings relating to parental responsibility taken by the courts and administrative proceedings authorised under national law. The definition of "parental responsibility" is broad and relates to the person and property of the child. In particular, the term includes rights of custody and access. A child shall have the right to maintain contact with both parents, unless this is contrary to his or her interests, and shall have the right to be heard on matters relating to parental responsibility in accordance with his or her age and maturity.

As is the norm in international measures of this kind, jurisdiction is based in the first place on the child's habitual residence, but this is qualified in certain cases. The aim is to attribute jurisdiction in all cases in a way that serves the best interests of the child. In the case of child abduction, jurisdiction will change from the court of the original habitual residence only where all holders of parental responsibility have accepted the new situation or where the child has resided in the new location for at least a year and is settled in his or her new environment. Where this does not happen, the court in the new state must order the child's return. However, in urgent cases, the courts of the state where the child is present will be able to take temporary provisional measures to protect the child, but the final decision on the child's future is taken by the court of the child's habitual residence.

Grounds for non-recognition and non-enforcement of judgments are set out, including where this would be manifestly contrary to public policy in the member state in which recognition or enforcement is sought, taking into account the best interests of the child. Judgments granting a right of access to a child shall be recognised and enforced in another member state without any special procedure being required.

Central authorities are to be established by member states to exchange information, co-operate with each other and to arrange any necessary legal proceedings. Among their functions will be the promotion of agreement between holders of parental responsibility through mediation and other means. It can be expected, the House should note, that a good deal of negotiation will be required on the draft regulation before it is acceptable in full to member states. I will take account of any points that may be made by Senators on any aspect of the proposal. As I have said before, I welcome a full debate before any committees are established by the Houses of the Oireachtas to deal with EU matters in order that Members can be briefed on developments arising from the negotiations and express their views on any issue that arises.

It has been the view of successive Governments that it is important that we opt into measures such as these in order that through the process of negotiation we can attempt to ensure through our input at an early stage any concerns we have are dealt with adequately. I emphasise that these measures can only be adopted on the basis of unanimity, meaning that if our concerns are not met, we can decline to adopt the measure. I hope Senators will support the proposal that Ireland opts into the discussions on these instruments. I look forward to hearing the comments of Members on both proposals and commend the motion to the House.

Mr. J. Doyle

I again thank the Minister for explaining these instruments to the House. I can understand his anxiety to bring them before the House today since we must notify the President of the Council by 14 and 16 August, respectively. I am grateful that the Minister gave a guarantee that the Houses of the Oireachtas can examine them again later before they are processed and that matters relating to European law will be discussed by committees of both Houses.

Listening to the Minister on the first instrument reminds me of a similar fear regarding the small claims court system, which works extremely well in our jurisdiction. I welcome its extension to other countries to make it easier to deal with uncontested claims. The second measure relates to matrimonial matters and is based on the principle of guaranteeing equality of treatment for all children, which I support.

Mr. Dardis

I support the motion and do not have much to say on the substance of the instruments other than to welcome the fact that there is unanimity involved in the judgments in matrimonial and parental responsibility matters, as it is important that all member states sign up to this.

The Minister raised the important issue of the scrutiny of European measures by the House. He is to be commended, first, for taking these items with debate as past practice was not to debate such measures. If we are to defend the openness and transparency of European measures, we must give them proper consideration in the Houses and this one can be used advantageously for that purpose. I note his saying he was willing to facilitate the House in looking at these measures when the negotiations had been advanced. I hope the Government will consider ways in which the committee system or the Houses themselves can more closely scrutinise European matters. This issue came up at the National Forum on Europe in relation to reforming the Houses, particularly committees. Those who will return to the Seanad must consider this.

Mr. Ryan

I will not repeat my flattery of the Minister since once is enough.

Mr. McDowell

I am a glutton for it.

Mr. Ryan

The problem is that the Minister does not succumb to it. Flattery never made him change his mind about any matter.

I welcome that we are beginning a process in which the views of the Oireachtas are being sought early rather than it being presented with faits accomplis. I would be foolish to pretend that was the reason that people voted “No” to the Treaty of Nice, but the sense of remoteness, of not being involved, persuaded many to stay at home on the day. The idea that the European Union is controlled by others made it seem unimportant. I hope this type of scrutiny will counterbalance this.

On the notification of claims, the Minister refers to the court of origin which seems, although I may be wrong, to mean that someone in Greece could take a claim against somebody in Ireland without that person being aware of it. What procedures will be required to notify the person in Ireland that such a claim is being made? I do not disagree with the principle that there should be no appeal as that would make it very unwieldy, but the necessary condition is that the person has a guarantee that claims will not appear out of thin air after being decided on by the court of origin, that is, in the country in which the claim originates. This could be difficult for people such as holidaymakers who might find claims being made against them because of alleged damage to an apartment in Greece. People might discover six months after the event that a claim had been agreed by a court in Greece. What guarantee is there that they will be notified before the claim becomes enforceable and thus incapable of being appealed against?

I do not object to the second instrument on the enforcement of judgments in matrimonial matters, but in the context of the debate on the European Union, was the possibility of the Commission initiating European-wide legislation relating to matrimony or child custody ever raised during the debate on the Treaty of Amsterdam? I am one of the liberals, but we were assured that the European project did not involve any areas which were particularly sensitive, such as divorce, marriage, contraception or abortion. I do not recall when the Treaty of Amsterdam was being debated that this kind of area would be covered by the Fourth Protocol – a phrase I love because of its dark implications. We must be more open. If something like this is covered by an EU treaty, the people should be informed of the implications before they vote.

While I do not object to this measure, I am concerned about the reference to a child's habitual residence in a custody dispute. Are we saying if a child has been abducted, the issue will be conducted in the courts of the state of the abductor, if that has become the child's habitual residence? If so, it is not a good idea. Another matter is that, almost by definition, the person who has the resources and organisation to carry out an abduction will be the wealthier of the two, although there may be exceptions. If that is contested, the person from whom the child was abducted may have to travel to another country. How will his or her legal expenses be dealt with? In a child abduction civil case here, a parent who was short of money would probably be entitled to at least apply for free legal aid.

If it will be conducted in Luxembourg, Germany, Greece or Bulgaria in the future, what will be the financial implications if the case is conducted in the child's new habitual residence to which he or she has been taken on abduction? I can understand from the child's perspective why that would be the case, but I am concerned about the cost implications of whoever would be seeking to have the abduction overruled or overturned.

Mrs. O'Rourke

I am glad to have this opportunity to welcome my colleague, the Minister, Deputy McDowell, to this House in his new role. This is also a new role for me. I wish to be a maiden again. I do not know how one can do that, but I am making a maiden speech to give force to my argument.

Mr. Ryan

The Senator should not invite speculation on that point.

Mrs. O'Rourke

I shall not, although I understand I have used the correct terminology.

The Minister for Justice, Equality and Law Reform put forward the Council regulation creating a European enforcement order for uncontested claims and a Council regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. Like Senator Ryan and the Leader of Fine Gael present, I do not disagree with either Council resolution. I will speak generally about them in terms of the matters alluded to by the Minister when he spoke about the need for accountability. In doing so, I am compressing all he said and putting it in its starkest form. When my party was in Government previously, there was much talk of this, but the matter has been given added potency and there is a need for significant momentum in this area.

When one goes to Europe as a Minister, one is confronted with a fait accompli in that the mysterious group, COREPER, has been hard at work on our behalf, and I wish it well. I have always called it a mysterious group. It presents its findings to which the Minister concerned is supposed to gracefully acquiesce and put forward the script provided for him or her. I never put forward the script provided and I always mentally fought against COREPER which reaches a high level of agreement in a conclave on a matter before it comes to the Minister. There is no way out of the matter. It is then signed, sealed and almost delivered.

Whether it is the Nice referendum, the fear of Nice referendum number two, the demands of the people or whatever, I am glad there is added momentum for the need to show accountability before that point is reached. I recognise the generosity of spirit of the Minister who said he is willing to come back to this matter if there are aspects of it we wish to further scrutinise.

On a general note, all matters relating to the EU with regard to directives or legislation should be debated before the Minister responsible goes to Europe, not when he or she returns. Irrespective of how equitable and proper such proposals are, it is daft that we consider them post-event rather than pre-event. Deputy Durkan did a good deal of work in this regard when he chaired the Joint Committee on European Affairs during the previous Government, but that is only tipping the iceberg. If we introduce a law governing group water schemes or electoral advancement, it is heavily scrutinised in both Houses where amendments to it may be taken. The legislation is then debated again and there may be fights, roars and shouts, but it is debated in order that the legislation that emanates from both Houses is seen to have been consultative in the widest sense. Any Minister worth his or her salt would consider amendments to a Bill and, if they are good, he or she would accept, say, one or two of them to add texture to what is put before us as a measure, to give due recognition to the civil servants. I am of the opinion that no Bill is sacred; there is no Bill that cannot be amended to improve it.

Irrespective of the lateness of our wake-up call for the need for greater scrutiny prior to the event, I urge the Minister and the Government to bear in mind that this is nothing compared to what will wash over us if we do not do that. I know Senator Mackin shares my view on this issue. Why should we allow a group of people, COREPER, who are not elected, to sit in solemn conclave and bring a measure to a point from which there is no departure and no going back? I strongly endorse the general tone and tenor of the Minister's remarks. There is momentum behind this measure. Whether it is brought about as a fear of this, that or the other, it is plain common sense. If we are to introduce Bills, directives and laws which affect us in our daily lives, they should be debated here before the relevant Minister. I think it is Denmark—

Mr. Dardis

Denmark and Finland.

Mrs. O'Rourke

My ministerial counterpart told me that she had to go to Parliament three weeks prior to that in respect of two measures that were coming up. The Parliament knew nothing about what I was going to do regarding those measures until post the event. That practice is irrational, nonsensical and does not make for good legislation. In time it will give rise to a sullen electorate who will feel that their rights are being bargained away in Brussels or Luxembourg by people whom they do not know and acquiesced to by a Minister who is presented with a fait accompli. I urge the Minister to maintain his new pioneering spirit in this regard and to bear in mind that all citizens of the country are better served by ensuring that measures are brought to these Houses prior to the event. I agree with the two measures presented.

Dr. Henry

I agree with Senator O'Rourke's comments. We have far too many problems here in terms of discussing regulations post hoc. It is too easy to say it is faceless bureaucrats in Brussels who have brought a measure upon us whereas one of the most important things we can do is to ensure that we have discussed this important type of regulation long before we get to this stage. It is not the Minister's fault that we have got to this stage.

Having had some experience with Mary Banotti, MEP, who is the rapporteur for the European Parliament on abducted children on an international basis, I realise the importance of this type of regulation. The Minister referred to how important it is that it is the court of the child's habitual residence that has jurisdiction over the case, but he also said that the jurisdiction can change to a new location if the child has been in that new location for a year and is settled in his or her own environment. Frequently it takes at least a year to trace children. Therefore, there is a great deal of work in this area which we need to discuss. I hope the Minister will bring forward all this work again when we reassemble, and God and the Trinity electorate willing, I will be there to help him with it.

Mr. J. Doyle

I hope the Senator will be there too.

Dr. Henry

I thank the Senator for that. This is an important area. The personal grief that can be caused by disputes in the courts cannot be underestimated.

Senator Ryan is right in pointing to the situation regarding the costs of travel for the aggrieved party who may have had custody of the child. I know of one case where custody was given in Germany and the child was taken to Western Samoa. That was incredible. One party is likely to be wealthier than the other, which was the case in that instance. In this case it is the child of a wealthy businessman and the child's mother has far less means. These cases are extraordinarily difficult.

I am impressed by the fact that the French proposals were reconsidered following discussion in Ireland and other countries. We underestimate how important an effect the discussions we have here can have on the input to such regulations. I applaud the Minister for saying he will bring this back in the autumn. It is a step in the right direction. I remember when former Deputy Nuala Fennell was Minister for Women's Affairs and tried to start this work. Great progress has been made. This is good and I support the passing of the motion.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I thank Members for their interesting and thought provoking contributions. I will deal with Senator O'Rourke's contribution first. On the whole area of justice and home affairs, it has long been my conviction that the potential of Title IV, in terms of domestic law changing and the effect on Irish society, is huge. To some extent we have been sleepwalking in this area. If the public gets the sense that we have been sleepwalking, the European project, democracy and respect for the Houses will suffer.

In relation to the Brussels II issue, during the first debate on the Treaty of Nice, the former Attorney General, John Rodgers, made a considerable impact on public opinion by drawing the public's attention to the extent of the changes to Irish law which were made in a manner which, in his view, had not been adequately considered by both Houses of the Oireachtas. There was some debate on these matters, but it was not as significant as one might expect.

In the area of justice and home affairs, there is huge potential for change in our society in the form of civil law and framework decisions on criminal law. I assure the Members of the House that, as far as I am concerned, this is a serious matter. I do not regard it as something in which the Executive arm of Government pulls a fast one or steals a march on public representatives. I believe that the process must be rethought to be one in which the Executive and the Legislature, as partners, consider the whole impact of European law making in the Irish context.

I also want to be realistic. Not every directive or proposed regulation is of huge interest to legislators in this House or the Dáil. There will need to be a sifting mechanism where those that require scrutiny are separated from those which are of no interest to legislators. That sifting process requires effort. I notice that in the other House today an Oireachtas commission on legislation was put in place. The resources necessary to address these issues in a serious way will have to be put in place so that the committees of both Houses will be in a position to be assisted by expert staff in the process of sifting and researching the significance of proposals coming in the form of draft legislation from the Commission and the Council.

There should also be an early warning system connecting the Houses of the Oireachtas with what is happening in the European Parliament where draft directives are being considered. We should be aware of the input of interest groups, NGOs, economic interests and the like, which is felt in Brussels when proposals are being generated, discussed and elaborated. We should have, effectively, political intelligence about what is happening and what is coming down the tracks. It should not, like a stealth bomber suddenly appearing on the radar screen, just suddenly appear at the last minute when virtually nothing can be done about it.

Senator O'Rourke referred to COREPER which is staffed by diplomats of the member states.

Mrs. O'Rourke

They are not elected.

Mr. McDowell

Under current arrangements they have a significant role in preparing, prior to Council meetings, the business of the Council. They effectively adopt, subject to a reversal out of it which can sometimes be politically embarrassing, a position for their state. Whether that is inevitable is arguable but the Danish Minister for Justice and Home Affairs recently visited here and explained to me her desire to put a period of time between COREPER meetings and Council meetings. That would enable some degree of reflection on the outcome of the COREPER meetings. The case at the moment is that some COREPER meetings happen on the night, day or morning of a Council meeting, leaving the Minister with little room to manoeuvre or to exercise separate judgment on the issues.

When I say that the Government is determined that the democratic deficit should be addressed, I mean that there must also be reciprocation. The effort must be made by Members of both Houses. There is no point in Government Ministers and public servants committing to a process in which the effort required to bring matters to the attention of committees of the Houses is not reciprocated by preparation, albeit with expert resources, by Members of the Houses of the Oireachtas. There is no point in a one-sided process where the Minister holds all the cards, the Department knows everything and the House knows little or nothing and only asks questions in a dismal process which is not assisted by adequate research and political intelligence gathered from the drafting process of the European legislative proposals.

Senator Ryan raised potential misgivings about the effect of the child abduction provisions. I argue, and the Senator might find the same on closer scrutiny of the proposed regulation, that it has the exact opposite effect of that which he fears. If one gives the courts of the country of origin a prima facie right to make a binding order in respect of a child it means that, for instance, in a family resident in Ireland which has a child here, the person who is left behind, the victim of the abduction, can go to his or her local court as of right and seek a binding order requiring the return to the status quo ante, the court where the child lived. That is more just towards the weaker party than towards the person who went to the trouble of absconding with the child. That is the fundamental principle. With certain exceptions, it is the court of habitual residence of the child, and presumably the parent who is frequently the mother, which exercises the right to require the child to be returned on a “no questions asked” basis to that jurisdiction. Where the original abduction took place from becomes the venue where validity of the child's interests is determined.

Mention was made of the question of legal aid. Applicants who have benefited from complete or partial legal aid, or exemption from costs, in the member state of origin will be entitled under the procedures, if this measure is accepted, to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for under the law of the member state. In effect, there is a built-in entitlement to the best legal aid regime available in the circumstances. There is also a proposal for a framework decision at an early stage in respect of the provision of legal aid in cases of cross-border dispute.

One of the implications of increased freedom to travel is the increased potential for taking a child from the parent in whose custody he or she should be. We should not say in such cases that we are only concerned with sovereignty issues and should not refuse point blank to recognise the orders of other courts. Injustice is visited on the parent or guardian on whom the surprise abduction is perpetrated, as well as the child. Sovereign states involved in the promotion of freedom to travel owe it to parents, who rely on them to uphold the law, to establish a coherent system whereby a clear set of rules applies when child abductions take place or issues of parental responsibility or access are at stake. Such a system should be understood by all, involve minimal expense and protect adequately the weakest members of society. It should ensure freedom of travel is not abused in order to deny people their rights as parents, whether such rights are constitutional or recognised by natural lawyers. Parents' rights should not be frustrated by the removal of a child from one jurisdiction to another.

I thank Senators for their thoughtful reflections. I look forward to discussing the points made by Senator Ryan, Senator Henry and others if a committee is established to examine matters such as this. If I am asked to do so, I will make it my business to give to whoever is interested an update on the progress of the negotiations. This is a serious process which will affect the lives of real people. It is not a process with which we should engage in legislation by default. All of us, both in the Executive and the Legislature, have a duty to take a full and active role in the interests of the people of Ireland and other member states. We must address the concerns of ordinary people that far-reaching legal changes, relating to their lives and those of their children, are taking place by stealth or a process which is not the subject of democratic scrutiny.

Question put and agreed to.

Seanad Éireann díospóireacht - Wednesday, 26 Jun 2002