I am pleased to have the opportunity to address the House on Second Stage of the Diplomatic Relations (Miscellaneous Provisions) Bill 2017. The purpose of this Bill is to modernise and bring clarity to the legal framework in respect of various arrangements concerning the staff of diplomatic missions and international organisations. To this end, the Bill proposes various amendments to the Diplomatic Relations and Immunities Act 1967 as well as to citizenship, immigration and employment permits legislation, which have been developed in consultation with the Department of Justice and Equality and the Department of Business, Enterprise and Innovation. These amendments are largely of a minor and technical nature.
I will briefly outline the contents of the Bill, which contains three parts with 11 sections. Part 1 of the Bill concerns preliminary and general matters. Section 1 provides for the Short Title of the Bill and section 2 is a technical clause. Section 3 repeals section 49 of the 1967 Act, which requires that the Government’s consent should be obtained before an Irish citizen can be appointed to serve in the State with an international organisation covered by the Act. This provision, which is now 50 years old, is not in line with contemporary practice in international relations. Another concern with section 49 is that it may be construed as interfering with an international organisation’s right to freely appoint its own staff. There are only a small number of Irish nationals serving in the State with international organisations covered by the 1967 Act. Furthermore, privileges and immunities enjoyed by officials of international organisations are of a much lesser, more functional nature in comparison to the wide-ranging privileges and immunities that apply to diplomats attached to foreign embassies. For these reasons, it is considered appropriate to repeal this provision.
Part 2 of the Bill amends the Government’s powers to make certain orders under the 1967 Act. Pursuant to powers set out in Part 8 of that Act, the Government may make orders extending privileges and immunities to an organisation, body or individual. For shorthand purposes, I will refer to these as “Part 8 organisations”. Such a procedure is considered desirable in order to extend routine privileges and immunities as required to give effect to the State’s international obligations, and to do so expeditiously, without the need for primary legislation, but in accordance with the principles and policies established by the Oireachtas. Some 60 orders have been made pursuant to Part 8 since the mechanism was established under the 1967 Act. In 2006, amendments were introduced to Part 8 to clarify the parameters within which the Government may make an order, enabling the Government to confer on Part 8 organisations privileges and immunities similar to those conferred on diplomatic missions.
However, in practice the nature of Part 8 organisations is likely to be more similar to that of the United Nations or other international organisations already dealt with in the Act. Therefore, it would be preferable to enable the Government to confer privileges and immunities on Part 8 organisations comparable to those enjoyed by the UN or other international organisations. Part 2 of the Bill aims to enable this by slightly broadening the parameters of the order-making power. It is intended that any such amendment would provide the flexibility required under the Government order procedure, while respecting constitutional limitations regarding the separation of powers. No Part 8 organisation could be given privileges or immunities unless they are equivalent, or have like effect, to what has already been conferred by the 1967 Act.
Part 2 of the Bill will also permit the making of a Government order under section 42A of the 1967 Act in respect of arrangements with international bodies that do not, as a matter of law, constitute international agreements, for example, because the body is not an intergovernmental organisation. An example of such a body is the International Committee of the Red Cross, ICRC, with which the Government has signed a so-called "status arrangement", which includes provisions on privileges and immunities. This Bill will allow the Government to make an order to give effect to this arrangement with the ICRC. It is further noted in this regard that Part 2 of the Bill also permits the Government to make an order to provide for the confidentiality of ICRC communications. Ensuring the confidentiality of its communications is considered crucial for the ICRC in light of its unique role and mandate. Part 2 of the Bill contains a saver clause designed to ensure the validity of any orders made under Part 8 of the 1967 Act to date. This saver clause is modelled on section 50 of the 1967 Act, as inserted by the Diplomatic Relations and Immunities (Amendment) Act 2006.
Part 3 of the Bill concerns citizenship, immigration and employment matters. The State’s long-standing policy in respect of staff attached to diplomatic missions has been to exclude them from mainstream immigration controls, and thus from entitlements to citizenship flowing therefrom.
However, in its judgment of the 24 June 2016 in the Rodis and Tolentino case, the High Court determined that two members of staff of diplomatic missions were entitled to have their residence in the State deemed reckonable for the purposes of naturalisation. The court noted that a specific statutory exception would be necessary to provide otherwise. This Bill provides for such an exception in section 9.
Section 9 also clarifies the position regarding citizenship by birth, making it clear that a child born in Ireland to a parent exempt from immigration controls under diplomatic arrangements will not acquire Irish citizenship unless entitled to acquire citizenship through another parent, such as where that other parent is an Irish citizen. The amendment provided for in section 9 will only apply prospectively and will be without prejudice to any period of residence accumulated prior to the entry into force of the Act. A further feature of section 9 is that it corrects a minor anomaly in our citizenship legislation with regard to Irish public servants serving the State overseas. The correction will ensure that children born to public servants serving abroad, and the children of those children in due course, are not disadvantaged in terms of entitlement to Irish citizenship.
Section 10 of the Bill complements section 9 by clarifying the relationship between immigration and citizenship legislation in so far as it concerns staff of foreign diplomatic missions in Ireland. It inserts a new provision into the Immigration Act 2004 listing specific categories of individuals who are exempt from the terms of that Act. Of particular significance is the fact that family members of domestic workers in diplomatic missions or diplomatic households will be expressly exempt from immigration controls for the first time. This means that those domestic workers will be permitted to be accompanied by their immediate family members for the duration of their posting in the State. This change is considered important, in the first instance, in order to respect such workers’ right to a family life. There is also some concern that the lack of a family support network may increase a domestic worker’s risk of exposure to isolation, exploitation and abuse. A number of alleged instances of abuse of domestic staff in diplomatic missions and households have arisen over the years, which has led to the recent adoption by the Department of Foreign Affairs and Trade of procedures and guidelines for missions. Facilitating the residence of family members of domestic workers will complement the safeguards introduced by these procedures and guidelines.
Section 11, the final section of the Bill, amends the Employment Permits Act 2003. The 2003 Act, as previously amended, permits the Minister for Foreign Affairs and Trade to issue a certificate to permit a foreign national family member of a foreign government employee on his or her posting to the State, who falls within the terms of a bilateral arrangement entered into with another government, to access the labour market without the need for an employment permit. These arrangements, known as working dependants agreements, are not typically entered into between countries within the European Economic Area because they are seen as inappropriate in the context of freedom of movement rules. This means that a third country national family member of an EEA diplomat in Ireland must apply for a mainstream immigration permission to avail of the right to work under European freedom of movement rules. In doing so, that family member effectively relinquishes his or her status as a family member under the Vienna Convention on Diplomatic Relations.
Section 11 aims to regularise this situation by permitting such family members to retain their status under the Vienna Convention, including the exemption from mainstream immigration controls, but permitting them to work through the issuing of a certificate by the Minister for Foreign Affairs and Trade. Making this amendment will only affect a handful of people but, nonetheless, it is considered a useful tidying up exercise in the context of a miscellaneous provisions Bill.
I commend the Bill to the House.