Wednesday, 22 March 2006
Seanad Eireann Debate
Minister of State at the Department of Foreign Affairs (Mr. C. Lenihan): I welcome the opportunity to bring this Bill before the House. As the Bill will amend a previous Act of the Oireachtas which has been amended once before and is of a technical nature, I will first provide the House with a brief description of the current law on international immunities. I will then explain the reason which gives rise to the Bill and set out its provisions.
In 1967 Ireland ratified the Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963. These two international treaties were adopted in order to 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. As is stated in the preamble to the Vienna Convention on Diplomatic Relations, “peoples of all nations from ancient times have recognised the status of diplomatic agents”. The two Vienna conventions recognise the functional necessity of diplomatic and consular privileges and immunities for the peaceful and efficient conduct of international relations.
Effect was given to Ireland’s obligations under these conventions by the Diplomatic Relations and Immunities Act 1967. This Act gives effect in Irish law to the two Vienna conventions. The Act also confers certain privileges and immunities on the United Nations and its specialised agencies; the Council of Europe; the Organisation for Economic Co-Operation and Development; and the Customs Co-Operation Council.
Part VIII of the 1967 Act permits the Government, by order, to designate an international organisation or body of which the State or Government is, or intends to become, a member to be an organisation to which Part VIII shall apply. Under section 40 of the Act the Government may, by order, confer on such a designated body and its officials “inviolability and exemptions, facilities and immunities, privileges and rights”. In addition to section 40, section 43 of the 1967 Act permits a Government order to confer immunities and privileges on international judicial bodies or semi-judicial bodies established under an agreement to which the State or Government is, or intends to become, a party.
The Diplomatic Relations and Immunities (Amendment) Act 1976 expanded Part VIII of the 1967 Act by the insertion of section 42A. This section allows immunities and privileges to be conferred on international organisations and bodies in accordance with international agreements to which the State or Government is, or intends to become, a party. It is not necessary that the State or Government is itself a member of the international organisation or body. It suffices that the State or Government is or intends to become a party to the international agreement which confers immunities on that organisation or body.
As was common drafting practice at the time, Part VIII permits the Government to confer, by order, privileges and immunities in broad terms; the power to confer privileges and immunities is not expressly stated to be limited to matters such as those covered by the Vienna Convention on Diplomatic Relations of 1961. Subsequent jurisprudence on separation of powers and consequent changes in drafting practice, indicate that the discretion of the Government should be formally limited in order to limit its power to make such orders to the types of privileges and immunity conferred in the 1961 Vienna Convention. The privileges and immunities conferred by orders made under Part VIII are in fact so limited.
The Bill will only amend Part VIII of the 1967 Act, as amended in 1976, and is solely concerned with the absence of any express limitation on the nature of immunities and privileges which a Government order may confer on international bodies and organisations. The purpose of this Bill, effectively, is a tidying up of the existing legislation.
The Bill will in no way alter the substance of Ireland’s commitments or obligations in relation to international privileges and immunities. It will simply insert into the 1967 Act a clear statement of principles and policies which will serve as a limitation on the exercise of delegated legislative power by the Government. The Bill will limit the delegated legislative power conferred by Part VIII of the 1967 Act by providing that the Government may, by order, only confer those inviolabilities, exemptions, facilities, immunities, privileges and rights which are conferred upon, or afforded in relation to sending states or missions under the Vienna Convention on Diplomatic Relations.
The types of immunities and privileges afforded by the Vienna Convention are as follows: the inviolability of the premises of an embassy of a foreign country or an international organisation; the freedom of the premises in question from taxation; the inviolability of archives and official documents; the inviolability of the person of the diplomatic or official officers of the foreign state or international organisation; freedom of communication; immunity from social security provisions; immunity from civil and criminal jurisdiction subject to certain exemptions; and immunity from customs duties.
Section 3 of the Bill will insert this limitation into section 40 of the 1967 Act. Section 4 of the Bill will insert this limitation into section 42A, and section 5 of the Bill will insert this limitation into section 43.
Section 6(1) of the Bill will provide that every Government order which has been made under Part VIII of the 1967 Act and is in force immediately before the passing of the Bill shall have the same statutory effect as if it were an Act of the Oireachtas. Section 6(2) will provide that existing orders regarding three organisations, the International Telecommunications Satellite Organisation, the European Telecommunications Satellite Organisation and the European Radio Communications Office, are revoked. This is being done because changes in the structure of these organisations necessitates the making of new orders.
The Department of Communications, Marine and Natural Resources has prepared new orders which will be brought to Government soon after the Bill’s enactment. To date, 45 orders have been made under Part VIII in respect of 37 different international organisations or bodies. A total of 29 of these orders conferred privileges and immunities, while 16 merely designated a body or organisation under Part VIII. A total of 25 of the orders relate to international agreements to which the State or Government is or intends to become a party, as provided for in section 42(A), and 19 orders relate to an international organisation or body to which the State or Government is or intends to become a party, as provided for by section 40. One order relates to an international judicial body as provided for by section 43.
The privileges and immunities conferred by these orders are of the nature of immunities and privileges afforded in respect of the Vienna Convention on Diplomatic Relations, as I have just outlined. The Bill will do no more than insert into the 1967 Act a constitutionally required limitation on a legislative power which has been delegated to the Government. In that sense, it is in line with best practice in this area. Diplomatic immunities are essential to the effective conduct of international relations and to the work of a wide range of international bodies. It is very important that the grant of immunities to such bodies, often in pursuance to Ireland’s international obligations, be in accordance with best legislative practice. Accordingly, I commend the Bill to the House.
Mr. Bradford: I welcome the Minister of State to the House and assure him of my support, which was offered when the Bill was first debated some months ago in the other House. As the Minister of State noted, the Bill will insert into the guiding Act of 1967 a constitutionally required limitation on a legislative power which was delegated to the Government so that we can ensure that the granting of immunities is in accordance with best legislative practice.
I am advised that the Bill seeks to ensure, in a retrospective manner, that all orders issued under the existing legislation to extend these privileges will have statutory effect from the passing of this amendment Bill. Could the Minister of State advise how many orders have been passed under the current legislation since it was brought to the attention of the Government that all such orders did not have the full and necessary cover of the legislation? This is not a matter in which there should be any legal uncertainty. The Government must have the ability to use its discretion to extend diplomatic immunities and privileges in line with the Vienna Convention and not leave any such decisions or actions subsequently open to challenge or withdrawal due to a problem with our legislation.
In today’s more globalised world, diplomatic arrangements are part and parcel of our consular services and are extended to those working in Ireland on behalf of other governments or organisations in the same way that they are extended to Irish people working abroad. The legal basis upon which these immunities and diplomatic privileges are extended must be absolutely clear. Therefore, this Bill, while brief, is important and must be passed at the earliest possible date.
I understand that this legislation was promised in the Government legislative programme for the past number of years. My party questioned the Taoiseach in 2003 about the bringing forward of the legislation, which was promised for 2004. Unfortunately, there was some overrun, as is often the case in the work of Government, so it was last autumn before the legislation was presented to the other House.
As the Minister of State indicated, the guiding document for the granting of the privileges dealt with in the Bill and which are part of modern diplomatic life is the Vienna Convention on Consular Relations, which was signed in 1963. This convention notes that the establishment of consular relations between States will take place by mutual consent, that a consular post may be established in the territory of the receiving State only with that State’s consent and that the purpose of diplomatic privileges is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective states. The convention also notes that consular relations, privileges and immunities contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems. This principle is at the core of the convention.
Ireland’s increasing role on the world stage has resulted in an expansion in our diplomatic links with other countries, both within and outside the EU. I am advised that we now have diplomatic relations with 157 governments. We are lucky that all of these governments did not wish to have a St. Patrick’s Day parade or there would have been a trip for everyone in the House.
I am informed that the Department of Foreign Affairs has a network of 67 missions, including 49 embassies, six multilateral missions and 12 consulates general and other offices. This shows the scale of Ireland’s growing and effective presence in the diplomatic field worldwide. We now have embassies in Latvia, Lithuania, Bulgaria and Romania and a resident mission in Malta, which opened last year. More than 300 civil servants from the Department of Foreign Affairs work on overseas missions and do an excellent job of presenting Ireland in a positive light and presenting its international policy on the world stage. They play a significant role in helping to attract enterprise and industry to Ireland, although this is not always their primary role. However, their selling and presentation of Ireland and Irish policies abroad plays a major role in selling the country.
As we extend our diplomatic network worldwide, we must always be vigilant and ensure that we extend it in a constructive and responsible fashion. The decision to open diplomatic relations with Burma, or Myanmar as it is now known, raises questions. I understand the Government indicated in 2004 that it would open diplomatic relations with Myanmar. There are matters relating to Myanmar which should be of concern to the Government and to us as parliamentarians, as would have been pointed out strongly at the time by those opposed to Ireland establishing official links with that country.
According to the head of the UN World Food Programme, one third of children in Myanmar are chronically malnourished, while the military junta which rules the country is responsible for an escalating humanitarian crisis. The pro-democracy leader, Aung San Suu Kyi, has been held under house arrest for many years and has also survived assassination attempts. Therefore, the decision by the Government to open diplomatic relations with Myanmar on a non-resident basis was considered very surprising.
The Irish ambassador in Kuala Lumpur in Malaysia is now accredited to the Myanmarese capital, Rangoon. At that time, Burma Action Ireland, which has contacted us on an individual basis and made presentations to the Oireachtas Joint Committee on Foreign Affairs and, possibly, to the Sub-Committee on Human Rights, described the decision to open diplomatic relations as a diplomatic coup for the military regime in Myanmar that would give much valued status to an illegitimate government. I am also informed that a former special adviser to the Taoiseach, Peter McDonagh, wrote an article in The Irish Times in 2004 which called for Ireland and the EU to stand against what he described as a very nasty regime in Myanmar.
When we decide to open diplomatic relations with countries, it is important we do so in a way that promotes the kind of standards of politics, democracy and government which we would like these countries to have. We must be very cautious in our dealings with countries like Myanmar and avoid giving them any degree of official recognition or developing any links with them. This is the only political point I wish to make.
I welcome the legislation before us. As the Minister of State noted, it is brief but it is more than a tidying up operation. It is legislation which is required to deal with matters in a retrospective fashion. I trust it will progress through the House in a speedy fashion and that it will be of benefit to our consular services worldwide.
Mr. Mooney: I extend a céad míle fáilte to the Minister of State to the House. He and I, and Senator Bradford, regularly attend meetings of the Joint Committee on Foreign Affairs. I was trying to reorient my thinking that he was attending a plenary session of the Seanad rather than a committee meeting.
I welcome the Bill. I read most of the debate on Second Stage when the Bill was introduced in the Dáil last September. It is euphemistically described as a technical Bill. I found it difficult to get my head around it and have a specific problem with it. In the context of limiting the Government’s actions, how does the Bill change the status quo? What difference will it make? The term used frequently by the Minister of State’s colleague, Deputy Treacy, was that it was an unusual departure in that it limited the Government’s role in law. This does not explain what it means to the layman because it was further stated that the Bill is in keeping with best international practice. Perhaps the Minister of State will explain the difference.
I was fascinated by the whole subject of diplomacy and went to the trouble of trying to establish where it all began. The term “diplomacy” derives, via French, from the ancient Greek “diploma”, composed of “diplo” meaning folded in two, and the suffix “ma” meaning an object. The document conferred a privilege, often a permit to travel, on the bearer. The term came to denote documents through which princes granted such favours.
I was also fascinated to learn that in ancient culture women played a key role in diplomacy. When one considers that as legislators we are constantly attempting to raise the bar in terms of equality, in the area of diplomacy and international diplomacy going back to the earliest times, women were very much to the forefront of activity. Famous female political leaders such as Cleopatra VII, Isabella I and Elizabeth I were enormously influential in the history of diplomatic relations. Historically, women largely played a secondary but substantial role as the wives of diplomats. In 1923, the Soviet Union became the first country to name a woman as head of a diplomatic mission. The US, which began admitting women into the newly-established American career service in 1925, followed a decade later by appointing a woman as ambassador to Denmark. France permitted a woman to enter its diplomatic service by examination in 1930. After the Second World War, increasing numbers of women were making a career in diplomacy and more women became ambassadors. Perhaps the Minister will give us an indication of the number of female ambassadors attached to Irish diplomatic missions. As a Member of this House I have had the privilege to travel to several countries on Oireachtas missions during the course of which I have come across some exemplary women representing Ireland in the diplomatic arena. Many of them continue to serve at the highest level.
Of the 191 members of the UN, 113 have diplomatic accreditation to Ireland, with 54 based on the island of Ireland and 59 operating from the United Kingdom. I agree with the Minister of State that this shows the respect that exists for Ireland as a sovereign State and a small country playing a major role in diplomatic and foreign affairs throughout the world. I endorse the views of my friend and colleague, Senator Bradford, that the activities and professionalism that have been brought, and continue to be brought, to the world of diplomacy by our Irish emissaries abroad is exemplary. One can only feel proud in their presence for the manner in which they discharge their duties, not just at ambassador level, but at first secretary to third secretary level. The respect they have gained within their respective missions, and in their dealings with their host country’s various personnel at government level, makes one feel proud that the flag is being flown by such distinguished people. I hope the Minister of State will convey the appreciation of the House for the outstanding work his diplomats are doing throughout the world to the Secretary General of the Department of Foreign Affairs, Mr. Dermot Gallagher. He is a county man of mine, and I am proud to see him serving at such a high level for so long in the world of diplomacy.
Immunity rears its head in the legislation in regard to all of the organisations. The Minister of State outlined 37 organisations enjoying immunity. This has been the case throughout history. It became the norm that the laws that existed in the various host countries would not apply to diplomats or their families. The Act of Anne in the UK in 1709 exempted ambassadors from civil suits and arrest. In the 17th century, there was a famous agreement between the Ottoman empire and the British empire which forbade searches of British embassies abroad, exempted taxes and ensured there was plenty of free wine for the ambassador. I wonder whether these laws are still in existence, particularly the Act of Anne 1709. Was it revoked or does it still apply here?
All of this history of diplomacy and immunity came together in the Vienna conventions referred to by the Minister of State. It happened primarily because the position of diplomats and the public respect they enjoyed declined substantially in the 20th century. This development, combined with certain other factors, including the explosive growth in the number of new states after the Second World War and an increase in the size of diplomatic missions and the increasing prevalence in international law of the view known as functionalism, according to which diplomatic privileges should be limited to those that are necessary to enable a diplomat to accomplish his mission, led eventually to attempts to restrict diplomatic immunities and international treaties. Therefore, the conventions to which the Minister of State referred restricted these privileges granted to diplomats, their families and staff. Avoiding controversial issues such as diplomatic asylum and focusing on permanent envoys rather than on ad hoc representatives or other internationally protected persons, the convention accorded immunity from criminal prosecution and from some civil jurisdiction to diplomats and their families and lesser levels of protection to staff members who generally were given immunity only for acts committed in the course of their official duties.
I was surprised to learn that all of this extends to 37 other organisations named on the record of the other House. These include organisations such as the International Cocoa Organisation, the International Coffee Organisation, the International Olive Oil Council, the International Jute Organisation, the International Fund for Ireland and many other organisations with which we are familiar, such as the United Nations, the Council of Europe and the Organisation for Security and Co-operation in Europe. One would expect that organisation to be included but I am surprised the other organisations are included. Does it mean that all the people who are involved in these organisations operating in this country, and their families, have the same diplomatic immunity extended to them as the international organisations to which I referred, the resident ambassadors and the ambassadors who are accredited but are not resident here who would enjoy that immunity when they or their staff visit? While I do not want to dwell on the subject, like most people, I assumed that diplomatic immunity applied exclusively to diplomatic missions and ambassadors. However, it appears that it applies to these 37 organisations. If all of these bodies have permanent offices in Ireland, does it mean that people who come here on a regular basis, and who are associated in any way with any of these organisations, automatically enjoy all of the immunities and privileges of diplomats and their families who operate in Ireland?
It is important to continue to respect and adhere to the detail of the Vienna conventions because there are downsides. Despite signing up to these conventions, there are countries which do not recognise the immunities accorded under the Vienna conventions. The most explosive of these, and the one that is probably best remembered, is the seizure of the United States Embassy in Tehran in November 1979 by supporters of the Islamic revolution in Iran, and the holding hostage of more than 50 American diplomatic personnel for 444 days. That is probably the most high-profile example of what can happen when a country does not extend or is not in a position to extend due to ferment in the country for whatever reason, the compliance under the Vienna conventions to diplomats in the host country.
A direct consequence of that seizure, in addition to the inconvenience and injuries perpetrated on innocent diplomats serving their country — it could just as much have been Ireland as any other country — was that it led to the defeat of Jimmy Carter in the US presidential election and the election of Ronald Reagan. The Iranians deliberately held the American diplomats hostage until the morning after President Carter left office as another insult to the man who had tried to rescue them. This was a case of military action which exacerbated and inflamed the situation and it is an example of what can happen.
Reference was made to Ireland’s diplomatic engagement with Burma or, as the junta there likes to refer to it, Myanmar. I will never refer to it officially as Myanmar because it is Burma, a state crying out for democracy. The sooner the junta is removed from there, the better for that country and for relations with it. I defend the decision of the Minister for Foreign Affairs, Deputy Dermot Ahern, to accredit an ambassador to Burma because the concept of diplomacy, which dates back to the earliest times, is about dialogue. Perhaps I am as guilty as others but sometimes when people criticise governments for taking particular positions, such as this one, they confuse foreign policy with diplomacy. They are two separate concepts. We have a foreign policy on what is happening with the junta in Burma but at the same time, we can continue to maintain dialogue. If diplomacy is about dialogue and confidence, there is some hope we might be able to change the minds of those in Burma and in other countries which have dubious democratic credentials.
Mr. Minihan: I welcome the Minister of State and his officials. I understand this is a technical Bill. Rather than an instrument of national or Government policy, the Bill inserts a constitutionally required limitation into the Diplomatic Relations and Immunities Act 1967, a limitation on legislative power as delegated to Government. Nevertheless, the subject of the Bill, namely, diplomatic immunity, is a critical one. It allows for the affairs of international governance and trade to operate and it facilitates many other actions and transactions we may take for granted in our modern, globalised world. However, its importance and foundations date back much further in our history.
The preamble to the Vienna Convention on Diplomatic Relations mentioned by previous speakers refers to the recognition by peoples of all nations from ancient times of the status of diplomatic agents. As a concept, immunity first emerged among groups and tribes in ancient times. Messengers were often allowed to travel from village to village without fear of harm in order to exchange information, even when they brought news of war. What must be understood is that although diplomatic immunity is in place today to protect individuals, as it was in those ancient times, it is not meant to benefit individuals personally. Rather, it is intended to ensure diplomats and officials can do their jobs. There is a tendency to almost automatically consider the immunity of foreign diplomats and officials working on our soil but, as with much international law, the operation of diplomatic immunity is based on reciprocal arrangements.
Under this process, diplomats assigned to any country in the world benefit equally from diplomatic immunity. This includes the many dedicated Irish men and women working on affairs of state on our behalf remember in countries across the world. Ireland has diplomatic relations with 157 governments and has a network of 67 missions abroad, including 49 embassies, six multilateral missions and 12 consulates general and other offices.
Ireland pursues its foreign policy in accordance with the ideals enshrined in the Constitution and in conformity with the principles of the United Nations Charter through the development of our bilateral relations with other states. Bilateral relations necessitate diplomatic relations. We further pursue our foreign policy goals via active and principled participation in international organisations. Again, this necessitates diplomatic relations.
Returning to the concept of reciprocal arrangements and the Bill, more than 160 nations are party to the treaties on diplomatic immunity. These are the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. These codify modern diplomatic and consular practices, including diplomatic immunity, and Ireland ratified them in 1967. They provide the necessary immunity to persons according to their rank in a diplomatic mission or consular post and according to the need for immunity in performing their duties.
This second element, namely, the immunity needed to perform duties, is an important one. As I stated, diplomatic immunity is in place to protect individuals and not to benefit them personally. Many of the contentious cases cited in international law are based on whether immunity should apply. Senator Mooney mentioned the Tehran experience. Another example which springs to mind is the Libyan Embassy. Policewoman Yvonne Fletcher was fatally shot while on duty at a demonstration outside the Libyan Embassy in London in 1984. Such is the status of diplomatic immunity in realpolitik that no attempt was made to enter the Libyan Embassy or to withdraw its diplomatic protection, even in defence of citizens.
The two Vienna conventions reflect this functional necessity of diplomatic privilege and immunity for the efficient conduct of international relations. In the main, diplomatic privilege and immunity have been necessary and practical in facilitating relations between states. It is worth mentioning that no member of the United Nations has yet proposed rescinding or re-writing the conventions, notwithstanding the often high profile cases to which they can lead. Effect is given to our obligations under these conventions by the Diplomatic Relations and Immunities Act 1967 which this Bill seeks to amend.
It is critical that the Government’s granting of immunities, often in pursuance of Ireland’s international obligations, be in accordance with best legislative practice. Thus it is necessary to limit the discretion of the Government to make orders for the application of privileges and immunities. It is striking that the Government would bring forward legislation which actually restricts it. In this case, however, best legislative practice requires that delegations of legislative power be limited. There must be a clear statement of the principles and policies to be followed in the exercise of that power.
This legislation inserts the necessary limitation into the 1967 legislation. Part VIII of the Act, as amended, will limit the privileges and immunities conferred in relation to the 1961 Vienna Convention on Diplomatic Relations which may be conferred by Government order. The Bill will do more than what is constitutionally required and limit the legislative power which has been delegated to the Government. It is a product of our experience in international diplomacy and decisions in the courts.
On Second Stage in the other House, this Bill became the context for discussion of a host of issues, including the UN, Iran, the Council of Europe, even the undocumented Irish in the US. I commend the Minister of State for guiding the debate on this legislation and for the publication and circulation of a specific explanatory memorandum in response to requests. There may be no onus or requirement on the Government to do so but it was, nonetheless, welcome.
Garret FitzGerald replied that he was “struck by the time it has taken to implement some of the provisions”. Diplomatic immunity and privilege are as indispensable today to diplomats to enable them to exercise their duties as they were when the Minister spoke in 1967, perhaps more so. Our world is shrinking all the time as globalisation proceeds. We have benefited immeasurably from EU membership, international co-operation and open trade. Ireland’s diplomatic and consular missions are an important, and often overlooked, part of that successful process. They deepen Ireland’s relations with host governments and advance our international priorities and objectives, promote Ireland and disseminate information on Ireland abroad.
The two Vienna conventions reflect the importance of diplomatic privilege and immunity for the efficient conduct of international relations, and Ireland’s obligations under these conventions are set out in the 1967 Act. The granting of immunities, in pursuance of these international obligations, must be in accordance with best legislative practice. In this light, I
welcome today’s Bill.
This Bill raises an issue we rarely discuss, namely, diplomatic immunity. I was struck reading the speeches on Second Stage in the Dáil and listening to contributions here, by the automatic acceptance that it is necessary and good. I agree but only up to a point. The Minister of State listed some of the exemptions and immunities conferred by the Vienna conventions. Some are self evident, such as the inviolability of the embassy building, documentation and communications, which are necessary for diplomats to do their jobs and represent their countries.
It is not clear, however, particularly in the context of the EU and our relations with other states, why we cannot levy rates on embassies or why they should be exempt from social security provisions and free from taxation or customs duties. These are not academic issues. A year or two ago, there was an industrial dispute in an embassy in Dublin, where the trade union representing the workers in the dispute ultimately contacted the Department of Foreign Affairs in that country to put pressure on so the country would not claim immunity from Irish and European labour law, as it was entitled to do. I do not see why it makes sense that a country should be entitled to say it will not treat its workers well because it has diplomatic immunity and is not required to apply Irish labour law. Nor do I see why we should exempt European Union or other embassies from the general requirements of property taxation or the taxation of normal workers.
This is worth examining. The general thrust of the Bill is to limit the exemptions rather than extend them but we take too much of this for granted and much of it is simply the application of the normal law of the land to the workforce in embassies. We should be slow to undermine it.
It struck me as odd that we seek to confer the force of an Act of the Oireachtas on orders that were made by the Government other than by Acts of the Oireachtas. Perhaps this has been done before but it is an extraordinary way to do things. We are saying that we may have done this on an ultra vires basis at the time but, after the fact, we have decided it should have been done by Acts of the Oireachtas and we now say it was. That is a strange way to go about things.
The Minister of State’s speech is limited in its explanation of the genesis of the Bill. There have been court cases which sought to undermine the effect of Government orders made over the years. I do not know the details of those cases but I would like to know how the courts established that it was necessary to introduce this legislation to give retrospective legitimacy to orders made by Government. If the Minister of State has details on those cases, I would like to see them.
My image of diplomatic immunity is that it applies to the diplomats of other countries and well-known international organisations which might have delegations here. I was astonished, however, to read the very long list of organisations, most of which I had never heard of. Why is this necessary if these are legitimate organisations carrying out their lawful activities?
Mr. McDowell: I assumed that was the answer but we should examine this issue. It might arise from international agreements and we are unlikely to change this practice unilaterally, but we should at least ask about it. Many Irish people would be surprised to know that the representatives of so many organisations they have never heard of are walking the streets with all these immunities.
This Bill gives me the opportunity to raise the status of our embassies in Africa, particularly our heads of mission. We have a number of embassies in Africa, in countries such as Ethiopia, that do a lot of good work and administer significant budgets but which are headed by chargés d’affaires. This has been going on for a number of years and should be resolved. The political consensus to address this exists, although I do not know what mechanisms in the Department are stopping the Minister of State from doing it.
I visited Ethiopia as part of an all-party delegation under the able leadership of Senator Henry. The amount of work the embassy does is striking. It administers an annual budget through Ireland Aid of €35 million and was dealing with issues relating to the EU Presidency, which we held at the time, which involved co-ordinating the main donors in Ethiopia, of which we are one.
It is not difficult to think of other European countries, for example, Sweden, Finland and Austria, with which we have no bilateral issues and in which our resident embassy administers virtually no budget and is headed up by an ambassador. In Africa, however, where titles matter, our embassies are headed up by chargés d’affaires, notwithstanding the work they do. Given that addressing this matter would have no particular financial implications, it should be resolved sooner rather than later.
My principal purpose today was to ask a few questions and puncture the notion that diplomatic immunity is great and wonderful. Perhaps we should consider confining the privileges we extend to diplomats and consular staff to those required to allow them to do their work and withdraw those that serve no other purpose than to make diplomats’ lives more comfortable. This should apply, in particular, to the embassies of friendly countries, including European Union member states.
Ms Ormonde: I will be brief given that the Bill is technical and my knowledge of the subject matter is limited. The legislation amends the Diplomatic Relations and Immunities Act 1967, which was introduced to give effect to the ratification by Ireland in 1967 of the Vienna Convention on Diplomatic Relations 1961 and the Vienna Convention on Consular Relations 1963. The purpose of the principal Act was to allow diplomats to perform their duties by giving them immunity.
As members of the European Union, we must conduct our business in the context of the globalisation process. For this reason, the Vienna Convention on Diplomatic Relations needed to be revisited. The Bill inserts a clear statement of guiding principles and policies into Part VIII of the principal Act of 1967. I am pleased we were alerted to the necessity to make this change.
Given the technical nature of the legislation, it may be necessary to hold a wider debate on the need to change the legislation. Perhaps the Minister of State would attend the House to engage in a discussion on diplomatic immunity against the background of EU enlargement. I welcome the amending legislation.
Mr. Lydon: This is a short but important Bill. The origin of the important concept of diplomatic immunity can probably be traced back thousands of years to a time when a king sent an emissary to another king informing him that if he did not stop fighting, he would trample over his territory. The second king then sent an emissary to the first king rejecting his demand. If one of the emissaries had been killed, the message would not have been received. For this reason, it was decided to stop shooting messengers.
The Cathaoirleach and several speakers have travelled abroad on official business. Members are given diplomatic immunity when they travel on certain missions, for example, on delegations from the Committees on European Affairs and Foreign Affairs. Diplomatic immunity is important when travelling to countries where there is trouble or strife. I have no difficulty with proposals to extend diplomatic immunity to other bodies which have international obligations. As this is technical legislation which proposes only to insert a new statement in the 1967 Act, it is not necessary to oppose it.
I am amazed to learn of the number of bodies which enjoy diplomatic immunity, in some cases for short periods. They include, for instance, a group representing cocoa producers. Another body should be added to the list, namely, the Sovereign Military Hospitaller Order of St. John of Jerusalem of Rhodes and of Malta, commonly referred to as the Order of Malta. Under international law, the order is a juridical body in its own right which maintains full diplomatic relations with 48 nations. It also has representatives or high representatives to the European Union, UNESCO, the United Nations, France and one or two other countries. Ireland is not among the EU countries with which it has full diplomatic relations. I have often wondered why the State has not established relations with the order, which has full charitable status here, maintains a large body of people throughout the world who are committed to entering war zones and places of famine and hardship, and does tremendous work establishing hospitals and clinics, providing help and succour to people in need and so forth.
The Government should appoint high representatives to the Order of Malta and vice versa. I understand this was proposed when the late Brian Lenihan was Minister for Foreign Affairs but for some reason the proposal fell through. Perhaps the Minister of State would accept an up-to-date submission on this matter and discuss it with the Minister for Foreign Affairs and departmental officials. I am aware the Department is known as a responsible, cautious Ministry which is almost impenetrable to outsiders. Nevertheless, it does a remarkably good job. I commend the Bill to the House.
Minister of State at the Department of Foreign Affairs (Mr. C. Lenihan): I thank Senators, particularly Senator Lydon, for their worthy contributions. I would welcome a submission on the Order of Malta, one of the organisations which acquired privileges and immunity under the diplomatic regime in place hundreds of years ago. Later, however, it was deemed necessary to discontinue the organisation’s immunity, not because it did anything bad — it does fantastic work in its charitable projects, etc. — but because it was considered preferable at international level to extend immunities and privileges only to states and related organisations as distinct from organisations with no links to states. I would welcome a submission from the Senator outlining the reasons the Department should change the current position.
On Senator McDowell’s point of giving statutory effect to an order, the Supreme Court in the recent case of Laurentiu v. the DPP in 2004 held that it is constitutionally permitted to provide by an Act that a statutory instrument already in force should have statutory effect as if it were an Act of the Oireachtas. Furthermore, it is not necessary to set out in detail the contents of such orders. The particular formulation used is on the basis of advice from parliamentary counsel and has been the subject of careful consideration.
On the general issue of diplomatic immunity the conferring of diplomatic immunities and privileges does not mean, for instance, that a foreign mission or embassy can absolve itself from compliance with the law. The Department of Foreign Affairs can be very active in this regard. From time to time cases arise in which the concept of immunity is pushed to its limits causing an understandable public outcry. My Department has made representations at official level to diplomatic representatives in Dublin when we felt the privilege was being abused. It is not a case that these entitlements can be automatically accessed once they are conferred.
Serious abuses of immunities would have an effect on the diplomatic relationship with the country concerned. The Department can make representations where a citizen feels disadvantaged by the exercise of a privilege or immunity conferred on a member of a foreign mission and it takes action when it believes inappropriate use is being made of privileges or immunities. While my experience in office is limited to the past 18 months, I was privy to discussions on these matters as a backbencher.
Mr. C. Lenihan: I do not think that is possible. The convention confers the immunities, so they are absolute privileges. Obviously, however, one depends on the goodwill of states and sponsoring governments to ensure missions act in an appropriate manner. It is not a charter for abuse.
I agree with Senator McDowell on the heads of missions of our overseas aid offices in Africa. The matter came to my attention soon after I took up this brief and I intend to address it in the context of the White Paper. I hope there will be a visible deployment of individuals in certain locations so we can give clarity to their roles. It seems odd that people who supervise budgets of €30 million and are involved in the serious business of developing countries and dispersing aid cannot call themselves ambassadors. I welcome the Senator’s signal that he supports reform on the matter.
On the issues raised by Senator Mooney with regard to female ambassadors, a number of outstanding women occupy positions of responsibility within the Department. Ms Mary Whelan, who heads our delegation to the UN in Geneva and accompanied me to the WTO talks in Hong Kong, is one of our more brilliant diplomats. Ms Anne Anderson, our ambassador to France, received international recognition in the form of an award for her performance during the Irish Presidency of the EU, during which she conducted herself with aplomb. Ms Thelma Doran is our longest serving ambassador.
Mr. C. Lenihan: If the Cathaoirleach will bear with me, there are only four female ambassadors in the Department, of whom Ms Margaret Hennessy in Greece is the most recently appointed. Ms Paula Slattery, who works on UN and multilateral issues, was formerly ambassador to Argentina. The Department has a good record with regard to the promotion of women. Ms Patricia O’Brien is the Department’s third female chief legal adviser in succession. Ms Marie Cross is the head of human resources and corporate services and Ms Kathleen White is our head of protocol.
Mr. Mooney: On a point of order, I asked a specific question while the Cathaoirleach was away from the House about the women employed at the highest levels. The Cathaoirleach may interpret that in any way he wishes but I want to provide a context for the Minister of State’s reply.
Mr. C. Lenihan: I wish to stress that they are able people who operate at the highest levels in the Department’s headquarters and overseas. I acknowledge Senator Mooney’s good wishes for the Secretary General, who is from the Senator’s county.
Senators Bradford and Mooney expressed their concern that diplomatic relations with Burma could confer legitimacy on that country. Quite the opposite obtains, however, because we do not link the establishment of missions with the conferring of legitimacy on regimes. We opened diplomatic relations with Burma in 2004 by dint of our presidency of the EU because it was deemed necessary in order to communicate our deep disdain for the regime’s actions. We find the Burmese Government to be reprehensible and one of the dirtiest abusers of human rights in the world. We make no secret of our disapproval at EU and national levels. We are unhappy with the situation in that country and the regime in charge.
I recently had the privilege of meeting with Burma Action Ireland, which supports the Irish Government’s position. We also participate in visa restrictions for members of the junta so that they do not have free access to EU countries. The UN has appointed two rapporteurs to Burma but they have been denied access.
The Bill is intended to tidy up the legislation pertaining to this area. A number of Members expressed puzzlement as to why we introduced the Bill but we did so to be in line with best practice. In an ideal world, we would not have to do this at all. Issues pertaining to the legislation were raised in an interesting Supreme Court case but none of the measures under discussion was deemed ultra vires, as Senator McDowell, perhaps mistakenly, believes. The Attorney General advised the Government that the area should be tidied by restricting the power of the Executive to confer privileges and immunities which are not set out in the Vienna Convention. Our policies are being aligned with those of the convention so that there will be no wriggle-room for a Government to dispense fresh immunities. The Attorney General might be criticised for being too proper in ensuring that issues of untrammelled Executive power do not arise.
I welcome Members’ interest in the conduct of our foreign relations and thank Senator Bradford and others for their kind comments on our diplomatic service. The people who represent Ireland overseas are a great bunch and it is a privilege to work with them. Most of the Members who have travelled abroad recognise that.
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