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Seanad Éireann díospóireacht -
Wednesday, 29 Nov 2017

Vol. 254 No. 10

Diplomatic Relations (Miscellaneous Provisions) Bill 2017: Second Stage

Question proposed: "That the Bill be now read a Second Time."

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.

I now call Senator Aidan Davitt, who has eight minutes.

Could I have more time?

Unfortunately, that is the order of the House. The Senator will have to speak quickly.

We will have to abide by the rules that have been set down.

I thank the Minister for outlining his plan in terms of the Bill. The Bill proposes to extend the privileges and immunities the Government may confer on international organisations, communities or bodies to include those that are equivalent or have like effect to those set down in specific international conventions, including the 1961 and 1963 Vienna Conventions. The Bill will provide greater protection for domestic workers in diplomatic missions and households and will provide clarity with regard to citizenship and immigration rules for foreign diplomatic staff and consular staff and their private staff. It is important to have legal clarity on diplomatic missions and the status of their staff. We must ensure that, where appropriate, our law reflects international norms. As the Minister of State has outlined, there are no specific costs associated with this. Fianna Fáil welcomes the Bill and wholeheartedly supports it. We appreciate that it is before the House today.

I welcome the Minister of State, Deputy Cannon, to the House and commend him on his proactive endeavours since embarking on this Ministry. I wish him well.

The Bill will update existing law on diplomatic relations. Its amendments will allow Ireland to be more in line with standard practice in contemporary international relations by enhancing the efficiency of procedures for the operation of Ireland's diplomatic relations. It is essential to ensure that there is legal clarity instead of the ambiguities that currently exist. In that respect, the Bill will clarify arrangements with respect to the staff of diplomatic missions and international organisations serving in the State. International relations are a matter of importance, especially since the withdrawal of the United Kingdom from the European Union. Indeed, the last item on our agenda relates to our bid for the banking headquarters. Therefore, we must consider all the benefits the Bill will provide. It will improve protection for domestic workers of consular and diplomatic missions as well as the household and will clarify citizenship and immigration rules regarding members of staff of a diplomatic mission and their family. The legislation is technical but it will lead to a positive development by aligning Ireland's position with the practices of the main EU member states concerning the status of members of diplomatic staff and consular staff appointed by foreign governments. It is important that we are properly aligned in terms of our standing and good relations.

The Bill removes the requirement for Government approval for Irish citizens to be appointed to international organisations serving in Ireland, which is too cumbersome at the moment. The Bill, therefore, repeals section 49 of the Diplomatic Relations and Immunities Act 1967. Section 49 provides that Government consent should be obtained before an Irish citizen can be appointed to serve in the State with an international organisation covered by the Act. A provision of this nature is not in line with standard practice in contemporary international relations and its repeal is therefore appropriate. It is inappropriate, too restrictive and should not exist. There is no reason Irish citizens should not apply for these jobs and get them without getting specific approval in each instance.

The Bill revises the statutory provisions enabling the making of a Government order affording privileges and immunity. Under the powers set out in Part VIII of the 1967 Act, the Government may make orders extending privileges and immunities to an organisation, body or individual. Such a procedure is considered desirable in order to extend privileges and immunities, as required, to give effect to the State's international obligations and to do so expeditiously and without the need for primary legislation. In 2006, amendments were introduced to clarify the parameters within which the Government could make an order but, in practice, the amendment has given rise to some operational difficulties. They are being sorted out in the Bill with the parameters being adjusted.

One example of a body that will be affected is the International Committee of the Red Cross. One would expect the Government to enter into a status arrangement in the near future with the ICRC which would include provisions on privileges and immunities.

The third major aspect to the Bill is that it provides that a period of residence in the State as a member of staff of a diplomatic mission or as a family member of such a member of staff is not reckonable for the purposes of naturalisation as an Irish citizen, and clarifies the rules concerning entitlement to citizenship by birth and to children born to staff of diplomatic missions. As the Minister of State has said, this provision was made necessary by a legal case. It is because of this court case that we need a statutory provision that the time spent on a diplomatic mission does not automatically provide for citizenship. This is how it should be and this is an important tidying-up of the law in this area.

The Bill clarifies the immigration status of the staff of diplomatic missions, including family members, and strengthens the safeguards for the protection of domestic workers in foreign missions and diplomatic households. The Minister of State has outlined the relevance of this in certain sad instances. This Bill also allows domestic and other staff to bring family members over and have them resident here, which is an important and civilised provision. It permits certain family members of foreign government employees to access the labour market in the State while retaining their status under the Vienna Convention on Diplomatic Relations 1961. This means, in other words, that the family members of diplomats and their staff could work in this country and this, again, is a reasonable proposition. This Bill is technical to a degree but it will nevertheless have a real impact on the staff of diplomatic embassies in this country and on the status of diplomats and their households. It regularises the law on this and deals with the recent court case by stating that time spent working in an embassy is not reckonable for achieving citizenship, placing this instead under a different status.

This is all very worthwhile and important. As this is a Second Stage debate I would just like to remark that all of our diplomatic relations are important, as has been very much pointed up by the Brexit issue. We should be very proud both of our diplomatic staff internationally and of our Department of Foreign Affairs and Trade staff here at home. We have achieved so much in creating a consciousness and an awareness of, and support for, the Irish position right across Europe. I have the privilege of representing Ireland at the Council of Europe and of leading our delegation there. Talking to people in Europe, I notice the high level of awareness of the Irish position. This is no small achievement and is due to the work of our Department of Foreign Affairs and Trade and of its international diplomatic staff. We should be so proud of them. Our recent near-miss in bringing the European Banking Authority to Ireland - only to be beaten in a lottery - is another example of their success. In my role in the Council of Europe I deal with-----

That was the last session.

Senator O'Reilly has only one minute left.

----- our diplomatic mission there as led by our ambassador, Mr. Keith McBean, who has had extraordinary success in his role with the Council and as an ambassador for Ireland. It is important that we take reciprocal actions here, just as we are doing with this legislation, showing that we in Ireland reciprocate and create a good statutory and regulated environment for the diplomatic missions here. This legislation will be welcome among the staff of those embassies and will create legal certainty that can only be good for them and good for Ireland.

I call Senator Trevor Ó Clochartaigh. He has eight minutes.

Go raibh míle maith agat a Leas-Chathaoirligh. Cuirim fáilte roimh an Aire Stáit agus fáilte roimh na feidhmeannaigh óna Roinn. I welcome the fact that the Bill before us will improve and formalise procedures for the operation of Ireland's diplomatic relations. I have one concern which I will address later. First, I generally welcome the introduction of this Bill which will enhance the efficiency and clarity of arrangements with respect to the staff of diplomatic missions and international organisations. The existing lack of clarity has been commented upon in the courts. The Bill will hopefully strengthen the rights of workers and their families and this is a positive development. The Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963 codify what is perhaps one of the oldest and most accepted fields of international law, namely the formal relations between states and their official representatives. In order to facilitate the peaceful and efficient conduct of these relations, these treaties grant diplomats certain privileges and immunity, including immunity from the criminal, civil and administrative jurisdiction of the receiving state. While this is an important aspect to the functioning of peaceful international relations, such immunity has been abused by a small number of diplomats in Ireland and abroad, and it is important that we state this from the outset.

I welcome that Part 1, section 3, of the Bill repeals section 49 of the Diplomatic Relations and Immunities Act 1967, which requires Government approval for Irish citizens to be appointed to international organisations serving in Ireland. Such a requirement seems unnecessary and archaic and I welcome its repeal. I do not fully understand, however, why this requirement was there in the first place. I am sure that there was a reason behind it at the time but it is now outdated and it is good that it is being removed. Part 2, sections 4 to 8, of the Bill includes some simple technical amendments to sections 39, 40, 42A, 43 and 50 of the Diplomatic Relations and Immunities Act 1967. I welcome that it does not include an amendment to section 47 of that Act, as had initially been included in the heads of the Bill. Head 5 of the Bill sought to amend section 47 by inserting "tribunal or other adjudicatory body or administrative authority" after "in proceedings in any court". In a positive development during pre-legislative scrutiny work, the Migrant Rights Centre Ireland, MRCI, pointed out that this would extend immunity to the workplace relations bodies on matters of employment, which would be problematic and would reduce workers' rights and possible entitlements. It is critically important that employers, including embassies, are held to account by the employment laws of the State and by the workplace relations bodies. While the issue of diplomatic immunity is contested in these settings, the MRCI has been able to file claims on behalf of domestic workers employed by diplomats and has had successful claims heard in the Labour Courts and in other courts. While the original proposed amendment relies on the bodies to decide if immunity extends as a matter of law, the granting of certification in the first instance muddies the water by asserting that immunity applies as a matter of policy. The impact of such a provision could have a disproportionate impact on the rights of workers to due process where their employment rights were deemed to have been breached. It would have also acted contrary to the guidelines on the employment of private domestic employees by accredited members of the mission, as introduced by the Department of Foreign Affairs and Trade in 2015. I welcome the fact that such a provision has not been included in this Bill.

There is no problem with the vast majority of embassies, as we know, but major issues have arisen in a few well documented and controversial cases. Between 2008 and 2014 the MRCI referred nine cases to An Garda Síochána of alleged human trafficking for the purposes of forced labour involving domestic workers employed in embassies and diplomatic households. In one of the more prominent cases, a 17-year old girl travelled to Ireland to work for a diplomat's family, having been told that she would be able to work part-time and pursue her studies. On arrival, however, she found that she would be required to be the sole carer of a child with severe special needs. Her day apparently started at 5.30 a.m. and her employer assaulted her when she asked to use the phone to call her family. This was all documented. The girl was not paid for her three years of work and, worryingly, she has yet to be compensated. Another case involved three Asian women who were brought to Dublin as domestic workers for a diplomat and his family. These women worked for an average of 108 hours a week, with two of them paid €134 per month and the third paid approximately €160 per month because she had been working for the family for longer. Anyone reading the details of these cases in the newspapers would have been shocked and horrified that this could happen in Ireland in the 21st century. Human rights workers in this area have said that because such domestic workers lose their visa status when they leave the employ of the embassy staff member, many feel bound to their employer and may be forced to stay in exploitative situations as a result. This is an anomaly that needs to be addressed. I thank the Domestic Workers Action Group, DWAG, for doing so much work in this area to highlight these difficulties. Under the Department's new guidelines, diplomats have to sign a contract agreeing to pay minimum wages; link workers with the MRCI; and allow for labour inspections. This is significant and extremely welcome. We know, however, that enforcement remains problematic due to protections provided by diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961.

I have deep concerns about Part 3, section 9, which seeks to amend the Irish Nationality and Citizenship Act 1956 to provide that any period of time spent in the State while exempt from immigration controls, as domestic workers in embassies are, is not reckonable for residency in the context of naturalisation.

We believe that this is an important right that should not be undermined or interfered with in this way. It also contradicts other important recent amendments to immigration laws which support those workers. I will seek to introduce an amendment on Committee Stage in that regard.

We also have problems with section 9(d). I know they are shared with the Migrant Rights Centre Ireland and lawyers in the field. I thank them for discussing this Bill with us and offering their opinions. The first issue is that the number of citizenship applications, which include a period of residence to which section 2(1A) of the Immigration Act 2004 applies, is negligible and is not sufficient to warrant or necessitate the inclusion of section 9(d) in the Bill, as proposed.

The second issue is that the Minister has absolute discretion in deciding to grant citizenship. The requirement for sufficient reckonable residence is only one of the criteria which must be considered. As such, section 9(d) is unnecessary and is in fact disproportionate in light of the stated objective and would have a negative impact on a vulnerable group of people.

A number of well-documented cases of exploitation and human trafficking of diplomatic staff such as private domestic employees has arisen in Ireland. The staff found themselves in need of humanitarian leave to remain or were identified as victims of human trafficking.

The third issue is that Irish case law supports taking a more flexible and progressive approach in cases involving serious rights violations and the leaning away from rigid standardisation. In such cases a more proactive, flexible and rights-based approach is required. Section 9(d) only serves to restrict further the ability of those most in need of protection to apply for citizenship, its accompanying benefits and increased security.

The removal of the section would also assist the State in fulfilling both its domestic and international obligations in ensuring the promotion and protection of fundamental human rights. Its inclusion undermines our obligations in this regard. As the section has such serious implications I will table amendments on Committee Stage as I would like to see it removed.

Section 10 in Part 3 amends the Immigration Act 2004 to specify particular categories of diplomatic and associated persons who are exempt from mainstream immigration controls. That is welcome because it allows domestic workers in diplomatic missions or diplomatic households to be accompanied by their immediate family members during their posting in the State, which is a positive step. During the pre-legislative scrutiny of the Bill, representatives of the Migrant Rights Centre Ireland pointed out that the explanatory note defines domestic workers as inclusive of service staff but that subsections of the legislation were unclear as to whether service staff were included. They requested a subsection to specify that a member of the private staff is inclusive of service staff. I welcome that section 10 inserts subsection (1A)(b) which expressly specifies that private servants are included. I welcome the fact that officials in the Department are listening as part of the pre-legislative scrutiny of legislation and are taking ideas on board.

Section 11 of Part 3 amends the Employment Permits Act 2003 to permit a foreign national family member of a foreign government employee on posting to the State who falls within the terms of a bilateral agreement entered into with another government to access the labour market without the need for an employment permit. That is a sensible and welcome amendment. It makes Ireland a much more welcoming place. However, we must ask about the situation regarding domestic workers in embassies and diplomatic households who are currently bound to their employers. If they try to leave, they lose their legal right to reside and work in the State. Should they not be included in an amendment to the Employment Permits Act 2003 and be allowed to apply for other jobs in the State? I am interested in hearing the Minister’s views in this regard, and that is something I might propose on Committee Stage. I bprionsabal, cuireann muid fáilte roimh cuid mhaith de na forálacha atá sa Bhille seo ach tá roinnt deacrachtaí againn agus beidh muid ag cur leasuithe chun cinn ar Chéim an Choiste.

I thank each and every Senator for their contributions and support for the general thrust of the Bill. Senator Joe O'Reilly mentioned the skills and commitment of staff across the diplomatic missions, in particular in the EU in the context of the work they are doing on Brexit. I echo those words. My experience of visiting a number of diplomatic missions, not alone in the EU but across the United States, is that we have an extraordinarily talented and committed team of people in each of those locations who work morning, noon and night in Ireland's interests. It is certainly the case that, in terms of Brexit and the need to keep Ireland's interests at the very heart of the ongoing negotiations, our diplomatic missions across the EU are doing an extraordinary job and making people very much aware of the unique challenges we face as a country and how best our EU partners can work with us in addressing them.

Senator Ó Clochartaigh raised some valid points to which I will respond. The general thrust of the legislation is to bring the human resources issues that arise in diplomatic missions in this country and in our missions abroad into line with international best practice. Senator Ó Clochartaigh posed some questions which I will address individually. He asked why we are seeking to exclude members of diplomatic missions and their families from mainstream immigration and citizenship arrangements. In accordance with international best practice, in the norm, members of those missions and their families are required to be exempted from the normal immigration controls, as one might expect. That is the case under international law, including under the Vienna Convention. Consequently, there is no application process for those individuals to come to the State, with the sending state effectively at liberty to appoint staff of its own choosing. Such staff also enjoy extensive tax exemptions, including in relation to PAYE, USC, local property tax and in some cases VAT. Clearly, that is a category of people who are quite distinct from those who come to the State through the normal mainstream immigration channels.

Eligibility for citizenship is a matter for each state to decide individually. Ireland shares the view with many countries that the spirit of the Vienna Convention envisages people coming to the State as employees of a foreign government for a finite period and then returning to that country or other country on assignment. In those circumstances it is considered appropriate to exclude them from mainstream citizenship arrangements, just as they are exempt from immigration controls, one being a logical corollary of the other. In effect, employees of foreign governments are deemed to the responsibility of those governments.

All speakers spoke about the importance of ensuring that we protect the employment rights of all the staff working in diplomatic missions on Irish soil. They cited some rare but significant abuses of such workers' rights in the past. Senator Ó Clochartaigh inquired whether a member of staff of a diplomatic mission whose right to remain in the State is linked to his or her employment could in itself lead to potential vulnerability to exploitation. A number of safeguards are in place to guard against that, including the Department's procedures to protect domestic workers in diplomatic households that were introduced in 2014. It should also be recalled that there have been instances where former staff members of diplomatic missions have been permitted to remain in the State on humanitarian grounds following the completion of their posting and thus entering the mainstream immigration system. Such requests will always be considered sympathetically, taking into account the individual circumstances of each application. All workers in the State under the Vienna Convention have the same access as other workers to the full range of support services for victims of human trafficking.

Senator Ó Clochartaigh asked about the number of people the Bill will affect directly. We have done a trawl and have come to the conclusion that 1,174 persons have been notified to the Department of Foreign Affairs and Trade under the Vienna Convention in diplomatic relations. That includes people working with diplomatic missions as well as their family members. We do not have a precise figure for staff and family members of international organisations within the State because there is no notification requirement akin to the Vienna Convention, but it is estimated to be several hundred. In total, that would mean there are approximately 2,000 people to whom the provision might apply.

I again thank Senators for their contributions. This is a very deliberate attempt to bring existing legislation into line with international best practice. I also thank my colleagues in the Department of Foreign Affairs and Trade who have worked hard in drafting the legislation. I hope we will see it move quickly through the Houses and become law.

Question put and agreed to.

When is it proposed to take Committee Stage?

On Thursday next.

Committee Stage ordered for Thursday, 7 December 2017.
Sitting suspended at 7.50 p.m. and resumed at 8 p.m.