Immigration Bill, 2002: Committee Stage.

Wednesday, 18 December 2002

Seanad Eireann Debate
Vol. 170 No. 25

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Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  On a point of order, a Chathaoirligh, under Standing Order 63 I wish to move that the House report progress. We have been presented with extraordinarily complex Government amendments which did not arrive in a proper form until approximately 4 p.m. today. They were not available to Members of this group until late yesterday evening. Therefore, to proceed with the business of the House in this fashion is close to being contemptuous of the House. We wish to move that progress be reported.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I am not accepting that point. I am calling for debate on section 1.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  On a point of order, on the same matter, it has come to my attention that in an interview published in The Irish Times today, the Minister indicated that further amendments will be tabled to this Bill. These are amendments which are not—

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  That is not a point of order. The House does not deal with anything in the newspapers, it deals with what is set out in the Business of the Seanad.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  It is relevant.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I am sorry, Senator, but we do not deal with anything in the newspapers.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I would appeal to you, a Chathaoirligh.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I am calling amendment No. 1 in the name of Senator Tuffy.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Are you suggesting that I am being either dilatory or obstructive, a Chathaoirligh? We are saying that the Minister was dilatory in producing these amendments.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  We are dealing with the amendments on Committee Stage.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am asking you, a Chathaoirligh, to accept a motion in my name that we report progress.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  No, I am not prepared to do so. I have already ruled on that matter.

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Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Under Standing Order 63, a Chathaoirligh, there are only two reasons why you cannot allow me to move the motion.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I call Senator Tuffy to move amendment No. 1, please.

SECTION 1.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 1:

In page 4, subsection (1), line 4, after “or” to insert “commercial”.

The amendment seeks to insert the word “commercial” before “mechanically propelled vehicles.” We feel it is over-kill to apply this requirement to all vehicles entering the State, and it could be detrimental to tourism. I would like to Minister to comment on the proposed amendment.

Minister for Justice, Equality and Law Reform (Mr. M. McDowell): Information on Michael McDowell  Zoom on Michael McDowell  I am opposing the amendment because, aside from the drafting difficulty, there is no such thing as a commercial mechanically propelled vehicle within the meaning of the Road Traffic Act, 1961. Given that that Act does not define the phrase which this amendment would create, the argument underlying this amendment is opposed in principle. I will elaborate on that point, if I may. To confine the scope of the carrier liability provisions of the Bill to commercial vehicles would seriously undermine the potential effectiveness of those provisions and leave in existence continuing scope for widespread abuse of our immigration controls. I see no justification in principle or practice for excluding non-commercial vehicles involved in bringing passengers to this State from the scope of the carrier's liability scheme.

Immigration controls must apply to all non-nationals seeking to enter the State from outside the common travel area. They could not operate in any other way. Carrier liability controls, which form part of the State's immigration control techniques, must likewise apply to all inward vehicular movements for the same reason. If it is unacceptable for the driver of a commercial vehicle to bring a person to the State without proper documents, which is the logic of this amendment, why should it be acceptable for the person in charge of a non-commercial vehicle? Why should it be unacceptable for the person in charge of a boat to bring in an undocumented person, even if the boat is a pleasure craft, and not a commercial vessel, for that is also the logic of the amendment? Why should it be in order for the driver of an eight-seater family car not to have to bother about presenting the passengers in the car for immigration, while the driver of an eight-seater bus must do so?

The plain fact is that this amendment would make the operation of sensible immigration controls of any sort, at the point of entry, inoperable. If an immigration officer has to make a decision [2035]as to which vehicles coming off a ferry are checkable, and which are not, the scope of revision of immigration control widens. That would be as good a means as any of providing encouragement to criminals to target Ireland as a place for illegal entry.

While we have in place strong provisions for combating trafficking in persons, in the Illegal Immigrants (Trafficking) Act, 2000, it would make for an incoherent strategic approach to combating illegal immigration if we were to close one form of abuse only to leave open another avenue for abuse. The amendment misses the point of the carrier liability scheme, which is to encourage those who are in the business of carrying passengers to make sure that all their passengers have proper documentation, and to encourage those who are not in that business to make sure they do not have on board any unexpected passengers who might not have proper documents. I urge the House to reject the amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  It is difficult to respond to this matter with the degree of restraint that I would normally like to display, because of the contempt with which the House has been treated by the Minister. Complicated amendments have been produced at short notice by a Government that has resources at its disposal. My party, which has limited resources, produced amendments to the Bill six days ago.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator should speak to the amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  With all due respect, I was reasonable on the Order of Business. I am entitled to express my opinion about the manner in which this business is being conducted.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  No, that issue does not arise now. It is a matter for the Order of Business and that has already been dealt with. We are dealing with amendment No. 1.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I wish to give notice that as this legislation is so complex we will not agree to any grouping of amendments. That is our privilege.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator can deal with that issue when we come to deal with amendments that are grouped. We are dealing with amendment No. 1 now.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am, by nature, a courteous man and I wish to afford you the courtesy of letting you know, a Chathaoirligh, that we will not agree to the grouping of amendments.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  That issue does not arise on amendment No. 1.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  We claim to be interested in tourism. The Minister's quite contradictory reply contained an understandable desire to ensure that [2036]those who are paid to bring people into this State have a liability to ensure they meet our laws with a reasonable degree of consistency. The Minister is now seeking to transfer that liability to the owner or controller of every car coming into this State. Is it a good idea to erect signs at Roscoff, Fishguard and other ports informing people from Germany, France, Italy and the Netherlands who are coming here on holidays that they may have to pay a €1,500 on the spot fine if they do not have the correct immigration papers or that they can wait and go to court and perhaps pay a fine of €3,000.

If the Minister's contempt for this House extends to exchanging pleasantries with the Leader I expect you, a Chathaoirligh, at least to enforce the same regulations with him as you have done with me. I will not be treated in this manner by the Minister for Justice, Equality and Law Reform or any other Minister.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I was greeting the Minister.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  That matter is not relevant now. Senator Ryan should speak to amendment No. 1.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  No, let us see the context of this. We have been landed, at short notice, with complicated amendments.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  That is not relevant to amendment No. 1. Please speak to the amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I expect at least a reasonable degree of attention from the Minister to the arguments we are putting forward on this legislation. I am interested in hearing from the Minister why he believes he needs to defend the security of our sacred isle to the degree of threatening to penalise tourists carrying in their car a person whose papers are not in order.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Far be for me to challenge any ruling of the Chair but I think Senator Ryan's argument is relevant because it provides a context for the amendment. It is perfectly all right to say that it is not reasonable to expect this House to deal seriously with amendments which we received with a degree of haste.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator's comments are not relevant to the amendment.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I will say no more in deference to your seniority and wisdom. Although I disagree with the Minister on this, I do not think he has any intention of treating this House with discourtesy.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  For the Senator's information, this business was agreed to by the House this morning.

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Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It is a little odd that this Bill was whizzed in here having collapsed with the previous Government. I know there was a little jiggery pokery involved. A Bill should be presented to this House ab initio following the election of a new parliament.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Standing Order 122 provides for the restoration to the Order Paper of Bills which have lapsed. The House agreed to a motion in this regard on 16 October 2002.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  That is the jiggery pokery I referred to. It slid in.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  No, Senator Norris, it was agreed. There is provision for this in Standing Orders.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It is an abuse of democracy and I strongly object to it. I will leave that issue to one side and make a comment on the amendment.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator should confine his remarks to the amendment.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Yes, I am firmly governed by the Chair.

The Minister was very honest and forthright – as he always is – in saying that he wants deliberately to extend this provision to commercial vehicles. Most people think of lorries in the context of the tragic situation which occurred in Wexford. I know the Minister was as upset about that incident as the rest of us and he wishes to do everything he can to avoid that type of occurrence.

The Minister has been open in saying he does not wish to confine this provision to lorries, commercial vehicles and so on. He feels that such a provision would narrow the Bill greatly, that the legislation must cover private vehicles used by families for pleasure, holidays, etc. I can confidently predict that we will face a series of cases whereby people will be stopped at ports and taken from their cars for one reason only – that they are black.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Hear, hear.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  People are routinely taken off buses and trains simply because they are not of Irish nationality by those vested with the responsibility of patrolling our tight little island. That is the real danger. I predict with great confidence that this is precisely what will happen when this Bill comes into operation. There may be legal reasons that questions of definition are involved – I bow to the Minister's legal knowledge, I do not have any such qualifications. The Minister was a superb lawyer in private practice and I have no reason to imagine his intellect has been dulled since he took ministerial office. I am worried that this provision will open the way for this type of abuse.

[2038]Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  On a point of information and not wishing to be contentious, I wish to comment on the last point made by Senator Norris. There are people of different race and colour driving buses and trains in this country. I remember 11 such people taking up employment in our transport companies. I know one of them quite well. I see him driving his bus practically every day.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Such an incident arose on the Belfast train. I can cite it for the Minister.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Our transport company employs people of different colour and race.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Senator O'Rourke, without interruption.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Without interruption, that is most unusual.

Ms O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I did not interrupt Senator Norris. I respect his opinion but I felt I had to correct him on that point.

As Leader of this House and the organiser of business, there was no jiggery pokery involved in bringing this Bill to the House. The matter was placed on the Order of Business and was so arranged.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  That matter is not relevant to the amendment.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I support the comments made by my colleagues on this side of the House. The inevitable effect of “vehicle” covering every vehicle entering the country is to reinforce a sense of fortress Ireland. The perception will be that any foreigners coming through our ports in a car of any shape, form or description will inevitably bear a question mark over them.

It would be appropriate for the Minister to accept our amendment and relate this provision to commercial vehicles. What the Minister is seeking to do – he may correct me if I am wrong – is to prevent trafficking which takes place, for the most part, in large vehicles. Groups of people travelling together will be the primary objective of this legislation.

Will the Minister clarify the remarks attributed to him in today's edition of The Irish Times regarding the introduction of further amendments to this Bill? Will he at least let us know what to expect? He has indicated to Cabinet that there will be further amendments to this Bill in the context of developments in the UK. It appears his thinking is for us to line up with UK law on this matter.

We are discussing 14 pages of amendments to a six page Bill. We are now getting indications of further amendments to the Bill. I put it to the Minister and the House that it is not appropriate to debate such a significant number of amendments which would have the effect of changing the Bill so completely that it should be redrafted and reintroduced in [2039]the House in the new year. I would be grateful if the Minister would indicate this to this House as a matter of courtesy, having done so to the Cabinet and the media. I appeal to him to look again at the amendment.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  In contrast to the very constructive debate here yesterday evening, we seem to have begun this one on a very cantankerous and preposterous basis. I do not think anyone in this House would condone or attempt to defend the criminal activities of trafficking in human beings, the unfortunate consequences of which we saw in commercial vehicles.

On Senator Norris's point, we are well aware of the situation in Wexford following the unfortunate incident last year. If we close off access by way of commercial vehicles, it will not be beyond the ingenuity of criminals to use private vehicles. Surely we are not seeking to open another avenue for these people. The Minister's response in this regard is eminently sensible and any other approach would not be responsible.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I want to make a point on the issue of the carrier and vehicles. The definition of “carrier” would include carriers of goods who transport persons lacking the required documentation into the State. If it is shown that such a carrier deliberately transports people and vehicles, or compartments of vehicles designed for goods, they should be dealt with under the legislation covering the illegal trafficking in persons. It would be better if the definition of “carrier” was confined to the carrier of passengers, which would overcome some of the difficulties.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Senator Terry's point is very sensible because the logistics of the proposal seem incredible if each private vehicle coming through the ports, particularly during the summer, is to be inspected. Drivers who give lifts to hitchhikers are very vulnerable because they must be assured that the person has the correct documentation. These drivers who may not be involved in trafficking could end up receiving a very large fine.

The Leader of the House was correct in saying there are black bus drivers, people working here who are Irish citizens, and that black people will not be discriminated against in coming into the country. The point Senator Norris said is true because a black bus driver was recently held at the Border between Northern Ireland and the Republic. He was kept overnight in a Garda station in Dundalk. He was not driving the bus when arrested but was a passenger in the bus going on for another shift. This type of thing is happening.

I had dealings with a young woman whose baby is black, even though she is not. She took the child to England to see his father – I brought up this issue in the Seanad previously – and she had considerable difficulty when returning to the [2040]country. People are singled out and we would need to be careful in saying this will not happen.

Mr. U. Burke: Information on Ulick Burke  Zoom on Ulick Burke  In view of the fact that there will be monitoring of all vehicles coming to this country, does the Minister envisage that huge numbers of personnel will have to be recruited to carry out these checks rather than putting the obligation on the commercial carriers, which we thought would be the case up to a few moments ago? Obviously this is a huge task.

Given that the Minister's colleagues have put a cap on all recruitment, what chaos will emanate from the proposals in the Bill? This is a very serious matter. Putting this theory on paper is one thing but carrying out the proposal is a different matter.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There seems to be some misunderstanding in regard to the ambit of the Bill. Section 2(1), even as proposed to be amended, makes it clear that the measure applies to a vehicle arriving in the State from a place other than Great Britain or Northern Ireland or, if a later amendment is accepted, the Channel Islands, Isle of Man and the other near possessions of the United Kingdom. Let us get this straight. The proposal is not of relevance to anyone crossing the Border.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It is even more likely to happen.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  It does not apply to anyone travelling in a plane from Great Britain to Ireland, nor does it apply to anyone travelling on a ferry from anywhere in the United Kingdom to Ireland. It does apply to, say, the Roscoff or Cherbourg ferry. Even if the legislation was properly drafted – unfortunately I can see the intent, but the intent was missed because there is not a phrase “commercial vehicle” within the meaning of the Road Traffic Act, 1961 – what I am being asked to do is to introduce a law whereby someone who, for instance, brings into the country from France 12 or 14 migrants in a caravan attached to a car escapes liability under the legislation, while someone who drives in with one undocumented hitchhiker on a lorry does not escape liability.

The Senators who accuse me of arrogance and discourtesy to the House should at least grant me this. The amendment is illogical because it is proposing measures which do not make sense. I would like to see the scene on the Cherbourg ferry as everyone ran from the lorry they were about to embark from into the caravan and then drove past with Senator Norris saying, “I am very glad the law is in a sensible state and that chap, Minister McDowell, was a bright man when he made that distinction”.

Mr. B. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  That is dangerous language.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Let us have a sense of humour about it. The reality is that this is a slightly ridiculous amendment which would have very [2041]anomalous results. It does not apply to anyone travelling into this country from the United Kingdom, it applies to vehicles on ferries. Because we are where we are in Europe, we are talking about vehicles on ferries coming from France. If I were to say a lorry driver carrying an undocumented hitchhiker is to face liability while someone who brings in a caravan load of undocumented people should not to face liability, I would be making the law an ass. I will not do that unless the House insists I do so.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  Does the Illegal Trafficking Act not cover people brought in illegally on commercial goods vehicles and, if so, should we not just deal here with carriers of passengers? Obviously these would be buses, cars and people carriers.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I have dealt with many Ministers in this House in the last 20 years or so. Most of them appreciated that Ministers should try to engage with the principle of an Opposition amendment on Committee Stage, rather than playing silly games about the precise wording of amendments. Senators on this side of the House are humble and are quite happy to accept that the combined resources of the Department of Justice, Equality and Law Reform and the Office of the Attorney General can sometimes draft better sections of Bills than we can. When we propose amendments to Bills, we raise issues in the hope that a reasonable Minister will take a reasonable position and will consider whether an amendment on Report Stage can be brought forward, with the advice of ministerial officials and the Office of the Parliamentary Counsel.

We ask that an amendment be considered on the merits of the case we make, not on the relative triviality of whether we can perform the same task of the Office of the Parliamentary Counsel in every detail. If amendments are to be considered on the basis of the triviality I have mentioned, we might as well forget about proposing them. The Minister, Deputy McDowell, should be more aware than most that technical complexities can be resolved by officials who are paid large sums of money to do so. Those of us who are poorly resourced make no apologies for being unable to draft perfect legislation.

It may happen that a person, as part of a group of people in a car coming to this country, will forget his or her passport or any other form of identification. In such circumstances, does the Minister think it is reasonable that the driver of the car, who did not know that a passenger had forgotten some documentation until the group boarded the ferry, should have to pay a fine of €1,500? Is this a good idea in a country that is allegedly endeavouring to entice tourists? If the Minister thinks that it is okay, he is right to oppose Senator Tuffy's amendment. If he thinks it is not okay, it is his responsibility to work out a way of dealing with the issues about which he spoke. The language used by the Minister when he referred to people scuttling out of the backs [2042]of trucks and into caravans is of a nature usually associated with Deputy Noel O'Flynn.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  Hear, hear.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  It is exactly the sort of silly and provocative language used by Deputy O'Flynn.

Mr. McCarthy: Information on Michael McCarthy  Zoom on Michael McCarthy  Hear, hear.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Such language encourages prejudice and the Minister should know better than to use it.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  On a point of order, is it in order for Senator Ryan to refer in a derogatory manner to a Member of the other House, given that the Member in question is not present?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I have finished my contribution in any event.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I have raised a point of order.

An Leas-Chathaoirleach:  Senators should not refer to persons who are not present to defend themselves.

Mr. McCarthy: Information on Michael McCarthy  Zoom on Michael McCarthy  Senator Ryan was not referring to Deputy O'Flynn, but to the Deputy's remarks.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I have mentioned Deputy O'Flynn in this House on many occasions and this is the first time that someone has come to his defence.

Mr. McCarthy: Information on Michael McCarthy  Zoom on Michael McCarthy  That is correct.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  It is a little bit late. I am disappointed that a Fianna Fáil Senator is defending Deputy O'Flynn.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  While I may disagree with the Minister, Deputy McDowell, in relation to various matters, I do not think it is appropriate to bracket him with the Deputy who has been mentioned. I exonerate the Minister from the charge of sharing the views that the Deputy in question routinely expresses. It is not realistic and I do not wish to be party to the accusation made by Senator Ryan.

Although there was a certain amount of annoyance on this side of the House when the Minister introduced an element of humour into the debate on this amendment, I had no problem whatever with it. Serious problems can often be underlined or illuminated by a touch of humour, as long as it is not particularly offensive and I found nothing offensive in the Minister's comments. We can be far too picky about language at times. I am much more interested in the substance of one's remarks, although I am willing to play linguistic games as tediously as anyone else in this House.

The Minister said that he has looked at the question of people being called aside on the purely observational basis that they happen to be of a different colour from the majority of Irish [2043]citizens. I am sure the Minister will accept that it happens with disturbing frequency, even between the two parts of this island. When I say that it happens with disturbing frequency, I should clarify that once is too often. Records suggest that it happens from time to time, although it is not an epidemic. The Minister admitted that it happens at the Border, but he said that it rarely happens to those who arrive on ferries from England and France. If it happens between the two parts of this island, is it not likely that it will happen with greater frequency when vehicles arrive from the Continent? I do not think the Minister has made a strong point, as the phenomenon I have described is more likely to be found when traffic arrives from the Continent.

I do not think a massive, criminally assisted invasion of Ireland by people driving Volkswagens or Fords is likely to occur. People arriving in cars are quite visible, whereas those who arrive in containers are concealed as a central part of the operation. It is highly unlikely that persons without appropriate papers will sit at the front of a camper van, smiling at the officials who come to meet them. Similarly, it is unrealistic to imagine that 12 of these people will hide in a caravan. Under this legislation, people who arrive in such modes of transport are requested to show the correct documentation and if they are found not to have it, they will not be admitted to the country. That is the real point.

The Minister raised the question of a hitchhiker. Why should somebody be fined €1,500 for giving a lift to a hitchhiker? I disagree with the Minister in so far as I do not think an automatic fine on the carrier would be a good idea. I will move an amendment later in this debate to delete a more appropriate section of the Bill for this reason. I will place before the House personal evidence that such a move would be dangerous and counter-productive. I disagree with the Minister on a philosophical level. The example he gave serves to weaken his case rather than to strengthen it, as it is more likely that people coming on ferries from Roscoff will be stopped.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  It is appropriate that I should say at the outset that Labour Party Senators do not sympathise with any legislation that will create a fortress Ireland. The Minister is aware that I do not agree that immigration officers, who already have too much power, should be given additional powers to enforce a state of mind such as that represented by Deputy O'Flynn in the other House. It is a mistake to think that Deputy O'Flynn would be in any way upset at being attacked in this House or anywhere else.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  He would be delighted.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Like many others, he revels in such criticism as it plays into his hands.

[2044]Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  He should be flattered by being bracketed with me.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  It is a sad fact that people like Deputy O'Flynn are quick to gain political advantage from the unfortunate problems of others. It is clear that the Labour Party wishes to oppose the work of commercial traffickers – people who bring others across continents for significant financial gain – and it supports any measure that will bring an end to their activities. The amendment moved by Senator Tuffy seeks to distinguish between well-organised criminal gangs that engage in the trafficking of hundreds of people across continents and those who may casually pick up a hitchhiker without asking if he or she has a passport. I do not think it is beyond the wit of the Department of Justice, Equality and Law Reform to cater for such a distinction by defining commercial vehicles in a clearer manner.

Senator Norris is right to say that this section of the Bill does not apply to the United Kingdom, including Northern Ireland. This provision does not arise from a strongly held principle, but from the fact that we have traditionally shared a common travel area with the UK. I do not doubt that the Minister would happily extend the provision to cover Great Britain and Northern Ireland if he could do so.

I am genuinely interested in knowing whether his Department holds statistics about the place of origin of the bulk of asylum seekers and where the majority of incidents of the type catered for in this section of the Bill take place. Perhaps the Minister can supply such details. Do such incidents take place as passengers disembark in Cork or Rosslare from ferries coming from Cherbourg or Roscoff? Do many such incidents occur in Dublin as people arrive from the United Kingdom? Where are applications for asylum made?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am trying to make a viable law. I fully accept that Senator Ryan is opposed to the principle of this Bill and I hope he will accept that I do not wish to get involved—

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Is the Minister referring to the principle of the Bill as it stood before or after he introduced a raft of amendments today? The Minister says he knows that I am opposed to the principle of the Bill, but to which version of the Bill does he refer?

An Leas-Chathaoirleach:  The Minister, without interruption.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I assumed that there was some party solidarity between Senators Ryan and McDowell, as Senator McDowell said a moment ago that his party's Senators were opposed to the principle of the Bill.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  That is an appalling distortion, as I said nothing of the kind. I said that we were in favour of the principle of preventing [2045]criminal gangs from trafficking people across countries for gain. We are not against the idea but we are not in favour of enforcing a law which would oblige people to subject those whom they casually pick up, such as hitchhikers, to interrogation and to inspection of their passports there and then. There has to be a distinction made. If not, we will fail to get the point. There is no need for the Minister to distort what I said.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There is a certain absence of reality here. Senator Ryan accused me of discourtesy to the House. None was intended. If I remain in good humour when others are becoming angry and working themselves into tempers, that is their problem, not mine. I intend to proceed as I started.

Those who board a ferry at Roscoff or Cherbourg have to produce documents to get on to the ship in the first place if they are travelling normally or openly. However, if they are travelling in the boot of a car or concealed under a rug in the back of a car, caravan or camper van they might be brought aboard a ferry in circumstances where they would not have to present their documents. This is double law in the sense that the carrier, for most purposes, is the owner of the ship and will not admit any non-national who is not properly documented to his vessel. The only people who are likely to be affected by the Bill are those who have somehow evaded the checks which are done as a matter of course by the proprietors of the ship and boarded it in some way.

The question which then arises is whether we should distinguish between someone who has evaded notice getting on to a commercial vehicle, who has to be criminalised, and someone who has evaded notice and got into a private vehicle with the knowledge of, or lack of vigilance on the part of, the owner and who should attract no sanction. We should consider whether it would be worthwhile to distinguish between those two classes of vehicles. Would it be worthwhile to say that someone who is operating the Act at Rosslare, or anywhere else, should be allowed challenge or inspect one class of people, those driving commercial vehicles, knowing that he cannot take any action under the Act in respect of someone who is driving either a caravan with people in it or car with people in the boot or in a rug in the back of an estate wagon? I ask the Senators to consider if it would be reasonable for me to accept, in all of those circumstances, even the principle of this distinction if the drafting has been correct.

I am not dismissing the amendment because its drafting is slightly defective. I am saying that even if the drafting was right the idea is not right. The distinction is simply not one which ought to be made in our law. I ask the Senators to consider this. It applies to people coming in vehicles – we are talking about road vehicles because this is the distinction which has been drawn by the amendment – from outside the State into the State other than via the United Kingdom. This means, in effect, people travelling in any car ferry from [2046]France or Spain. The amendment is asking me to say that someone who somehow gets on to one of those ferries without being checked in the ordinary way and someone who carries him should not be subject to a sanction if the vehicle he is using is a private vehicle but should be subject to a sanction if it is a van, bus or lorry.

No matter how long the debate on this amendment goes on, the Senators who initially supported the amendment will, on reflection, consider that it is not a distinction that should be made. I ask, in good humour and as politely as I can, that the Senators reconsider and with draw the amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I do not wish to delay the House but the real difficulty is getting the Minister to address the problem. If someone is in a car on a car ferry, under the legislation the person in charge of the car ferry will be guilty of an offence if he has not checked it. The first reality check is that anyone who has used the car ferry services between Ireland and France knows that on the other side there is a 50/50 chance that his passport will not be checked in either direction. There is no guarantee that the authorities in those countries will check passports. However, an obligation is being imposed with which I would not take so much issue and that is that those operating the ferries are supposed to ensure compliance. It is gross overkill to extend the obligation from the operators of the ferry to people on a family holiday, coming from the Netherlands, France or Italy one of whose members forgets to bring proof of his identity. The only safeguard is that it shall be a defence for someone charged with an offence under this section that he took all steps reasonably open to him to ensure compliance. If a Dutch person on holidays forgets to check that all of his children have their passports, is he taking reasonable steps? There is no need to penalise innocent individuals.

I apologise to the Minister if I was a little sharp. I did not say that he was like Deputy Noel O'Flynn. I said that the language he used was put him dangerously close to being accused of that. He is casual in his use of language and gives encouragement to people like that.

I wish the Minister would explain why he has to penalise the drivers of private cars in the same way and with the same fine as the operator of a car ferry. If the maximum penalty for the operator of a car ferry is €1,500 for one person, why is the penalty the same for an innocent driver of a private car who happens to have someone in the car who is not carrying documents? Why cannot the distinction be made between people who are coming here? This is supposed to be a welcoming tourist-oriented country which is encouraging people to come here.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Everyone who boards a ferry will be checked by the ferry company. At present it has not an obligation to check the documentation of its passengers. We are now bringing [2047]in a rule that obliges them to check and they will pay a fine for every undocumented passenger they carry. From now on every ferry company and airline travelling into Ireland from outside of the United Kingdom will have to put in place checks to ensure all its passengers are documented. That is a rule we are introducing and they will be liable if they fail to live up to their new duty. Someone who boards a ferry undocumented is someone who will have evaded.

I accept Senator Ryan's point that currently there is some casualness about this and not everyone is counted in every car. From now on that degree of casualness will disappear. Everyone will have to carry appropriate papers to board a ferry or plane from outside the UK and coming to Ireland. It will be unusual for anyone boarding a ferry to be unchecked from now on.

It could clearly apply to people who are concealed in a vehicle. Unless ferry staff search every vehicle, it is possible to conceal people in one. If people are travelling like this and the owner has failed in his or her duty to check whether they are entitled to enter Ireland, it would make no sense to distinguish between the driver of a car towing a caravan with five people under the bed and the driver of a truck who made no effort to ensure that his container doors were locked while travelling between Cherbourg and Rosslare. We are dealing with reality here.

I ask the Senators to withdraw the amendment because it asks me, even if it were redrafted in a neater way, to make a distinction I ought not to make and which has no practical use.

An Leas-Chathaoirleach:  Is the amendment being pressed?

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  We will withdraw it for now but we would like the Minister to reconsider it on Report Stage.

Amendment, by leave, withdrawn.

Question proposed: “That section 1 stand part of the Bill.”

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  As I mentioned earlier, I want the word “carrier” changed to “carriers” on Report Stage.

An Leas-Chathaoirleach:  The Senator should ask the Minister's views now and then she may put down an amendment on Report Stage.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Senator has mentioned it now and if the Standing Orders of this House are the same as those of the other House, this entitles her to raise the matter by way of a Report Stage amendment. I would prefer to wait and see exactly what she has in mind before I comment on it.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am glad that the Minister, along with “The X-Files”, still believes in aliens. It is [2048]time we got rid of language such as “aliens”, as in the Aliens Act, 1935. For the generation under 25 years old, “aliens” means something completely different from what it means in the Department of Justice, Equality and Law Reform. It is time we got our language up to date. That was supposed to be good-humoured, a Leas-Chathaoirligh.

Is the Minister happy with the language in the definition of “vehicle“? According to the Bill, “vehicle” includes any ship, boat, aircraft or mechanically propelled vehicle within the meaning of the Road Traffic Act, 1961. I had not thought the Road Traffic Act, 1961, made mention of ships or aircraft. The Bill could do with some tidier drafting.

Mr. U. Burke: Information on Ulick Burke  Zoom on Ulick Burke  Recently, 19 students were refused visas which would have enabled them to study at business and language schools here. At the same time, schools in Dublin such as Portobello College, the American College Dublin and the Dublin Business School, can freely accept students from the same international agency. Because these students want to study in the provinces, they are being denied access for seemingly spurious reasons. I ask the Minister to allow an amendment on Report Stage to prevent discrimination against students who are coming here for legitimate reasons, through proper, internationally recognised agencies. I seek the Minister's guidance on this matter.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  I welcome the Minister to the House. Ireland, as other Members have said, is seen as a welcoming nation. Any of us who have travelled to Eastern Europe have seen the delays that can occur on trying to enter a country. I hope Ireland will not become like this, with delays of two to three hours when coming from any of the neighbouring countries.

Dublin is seen as a wonderful destination for people from other capitals in Europe. The legislation should not mitigate against our country as a tourist destination. Can the Minister give us an assurance that the required personnel will be in place to administer the legislation when it is enacted?

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I am not trying to cause devilment, but I am not clear on whom the primary liability falls or who the carrier is in any particular case. The definitions section defines carriers, including the owner, and then further defines “owner” to include part-owner, charter manager or operator. It is not unusual for ships or, for that matter, planes to have quite a complex pattern of ownership in which one person might own it, another charter it and yet another operate it. For the purposes of the Bill, who is the carrier on whom the primary liability falls?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Senator Burke should know that there is no theoretical or de facto policy of discriminating between colleges in deciding who [2049]can obtain a visa to attend. I am being disorderly in replying to this because it is not relevant to the Bill.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  This is a disorderly House.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I assure the Senator that to my knowledge, there is no policy, either formal or informal, of discriminating against colleges based on their geographical location in relation to admission of students.

This Bill will not add to the difficulties in getting into Ireland. What will happen is that the carriers, who are in this sense the proprietors or the people in charge of the ship or aircraft, will have to check documentation. It should be understood in the House that no “fortress Ireland” policy has suddenly appeared in the Department of Justice, Equality and Law Reform. Ireland is the last country in the EU not to have such provisions. This is not something we took out of the bottom drawer over at St. Stephen's Green to help us create fortress Ireland. Ireland is an anomaly in Europe in that every other member state has put in place carrier liability legislation of some kind.

Senator McDowell asked about primary liability. The simple answer is that there is no simple answer – it depends. If the owner of a ship allows a lorry on to the ship in which three or four refugees are concealed, it would be unreasonable to expect the staff of the ship to search the lorry in question. In that case the carrier will not be liable under this law if he or she had no reason to believe a passenger was being carried. If, on the other hand, somebody is plainly visible to the carrier, who fails in his or her duty to ensure that the person is documented, he or she should be liable under this law. This law imposes on them a duty to ensure they do not carry undocumented passengers. If a lorry driver unloading a container at Rosslare had an undocumented passenger in the front seat, it would suggest that the owners of the ferry failed to ensure he or she was documented. If the person being carried is hidden under bales in the back of the container there is no prima facie basis on which an immigration officer could seek to apply liability to that person. It all depends on the circumstances.

There are many cases where criminal liability is applied to a number of people at the same time. One of them might establish a defence that he or she has taken all reasonable steps but the owner of a car in whose boot there is a person concealed with his or her knowledge is liable. It is shared liability in theory but only one person will be liable in any given circumstance.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  It is not that simple. CityJet is owned by Air France but Servisair operates the check-in facilities and employs the ground staff in Dublin Airport. Who is responsible for checking [2050]the documentation? Is it Servisair, the airline or the owner of the aircraft?

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  We are back on Second Stage.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  That would not be a bad thing.

An Leas-Chathaoirleach:  We are dealing with the section. We have already dealt with the amendment.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  We must deal with the section. We are having a global debate on the whole subject.

An Leas-Chathaoirleach:  Senator McDowell was speaking to the section.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I respect your decision, a Leas-Chathaoirligh, but if the debate continues to be so wide open, we will never finish.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I am capable of devilment but here I am genuinely trying to tease out what “carrier” means in the definition section of the Bill. The carrier is the person who is liable under section 2 of the Bill for the offences. Going back to the example, would Servisair, the owner of the aircraft or the operator of the aircraft be liable?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Senator McDowell is a lawyer of some subtlety and perspicacity. I cannot think of any clearer language to express who the carrier is. It is either the owner of the vehicle or the person in charge of the vehicle. Where Aer Lingus or any other airline delegates to another company the checking of passenger documentation, it does so at its own risk. If it carries someone who is undocumented, that is its problem. The Bill does not allow it to say it has complied with its duties because Servisair in Paris did it. The obligation is non-transferable. Whoever owns or is in charge of the vehicle carries the liability. There a difference between the owner and the person in charge because the vast majority of aircraft are owned by leasing companies.

There must be a definition of this kind. People cannot cast off their liability under this Bill if they are a carrier. It does not matter a whit if they have done the checking themselves or asked someone to do the checking for them, or whether that person is an independent contractor or an employee. It is immaterial to the liability of the carrier. It is clear if the Senator consults the definition of “carrier” that is so.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  We have not cleared this up.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  We are bedevilled by McDowells. Sons of the devil.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  The Minister is saying that the people responsible for checking passports in Dublin Airport are not those who will be held liable, but the airline that owns the plane being [2051]boarded. I came back from Roscoff during the summer. There is a hut at the entrance to the port where passports are checked, or not, as happened to me. I presume the French immigration service or the police operate that service. If I was with Brittany Ferries, it would be reasonable for me to rely on these guys to check passports and documentation – that is their job. The Minister is saying that if they do not do that properly, Brittany Ferries is still responsible. That places unreasonable liability on the carrier. Immigration is for states to organise through their police forces or immigration services. If they do not do their job properly, to place a secondary or primary liability on transport companies is entirely unreasonable. The Minister will put in place two checks – the State will check at one hut and then the transport operator will have a responsibility to check it further along. That is unreasonable.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I agree with Senator McDowell that it is wrong to place all responsibility on either the carrier or the driver of a vehicle. There are varying levels of inspection at different ports. It is unreasonable to expect a lorry driver to have the equipment that the French authorities would have that can detect body heat through container walls. The onus should not be shifted on to lorry drivers. It is unfair and places a disproportionate penalty on them. It should be shifted to the officers of the states through which the vehicle passes. They have the capacity, resources and technology to do this. There are situations where lorry drivers have passed through checks in good faith and, subsequently, people were found on board. If the checking authorities of the state cannot find someone in a vehicle and a driver is unaware of them, why should he or she be penalised when the officers of the state who are charged with the responsibility are not penalised?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The Minister used the word “refugee” when he talked about the people concealed in the container. I would have thought that for a man with such a capacity for precision the appropriate term would be “illegal immigrant” or “asylum seeker”.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am giving them the benefit of the doubt.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I have never heard of the traffickers who facilitate illegal immigration doing much for refugees. They have done it for economic migrants because they pay them. Refugees do not usually have any money to pay people. If refugees are concealed, it is probably because some humanitarian is trying to be helpful. We should be more careful when we talk about illegal immigrants and economic migrants. Words such as “refugees” have a particular meaning, as the Minister knows better than I.

[2052]

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I return to the logistics again. Senator McDowell made a very good point about how difficult this will be. If the State cannot find the people in question, how can those in charge of ferries find them? Is it envisaged that immigration officers will be on the gangway when cars are driven on board in Roscoff and Cherbourg?

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  That was my point.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  Senator Norris made an interesting point about the authorities in other countries. There is anecdotal evidence – perhaps more than that – to suggest that other authorities have turned a blind eye to this. The events at the Channel tunnel are an example. The authorities are happy to see people pass through their jurisdiction into others. This is a reasonable point. I have some knowledge of the shipping and transport business and cannot see how carriers and drivers could be excluded from the legislation. Some of them have undoubtedly been culpable in accepting money for trafficking in human beings.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  They should be entitled to a hearing, not automatically convicted which is what will happen under the Bill.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  There has been evidence of such trafficking. Situations will arise where the carrier or driver may be totally oblivious to the fact that there are people on board. We are on section 2 of the Bill.

An Leas-Chathaoirleach:  We are on section 1.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  The matter of how a defence can be mounted is dealt with in section 2. This comes back to the point I made about conducting the debate in an orderly fashion. We can have a good debate on this when we reach section 2 where the matter is dealt with.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  In a good humoured way, this broad phalanx of the Opposition, most of whom would put themselves somewhere on the left of the political spectrum, amuses me.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The Minister should not presume too much.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The notion that the duty should be cast on countries to prevent people leaving undocumented is a profoundly left wing view. As one who has stood in Sheremetyevo Airport in the old days—

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Pinko.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There seemed to be much more concern on the part of the former Soviet Union to stop people leaving the place than to prevent them getting in. That is resonant of one kind of society. There is no obligation on any EU member state or its police force to check any vehicle leaving the country in order to prevent [2053]undocumented people getting out. A system which sought to cast that responsibility or asked the Irish State to assume it would be done by other countries would be a nonsense, as Senator Walsh pointed out. There is no interest on the part of most states in preventing a problem from passing through their territory to the territory of another country.

We must get real about this. This is a carrier liability Bill, not a foreign states police force liability Bill. We cannot control the activities of police forces in continental Europe and oblige them to check vehicles. However, as Senator Walsh said, in the fullness of time – it will be full if we continue at this rate – when we reach subsections (5) and (6) of section 2, it will be realised that there is a full defence to cover exactly the points about which Senator Norris is concerned. While we engage in verbal trench warfare about the definitions in section 1, we ignore the full defences offered in section 2. Unless somebody has a difficulty with the definitions or is offering a different definition, or hoping to offer one on Report Stage, we should agree that section 1 stand part of the Bill.

Question put and agreed to.

Government amendment No. 2:

In page 4, subsection (1), line 20, to delete “Great Britain or Northern Ireland” and substitute “Great Britain, Northern Ireland, the Channel Isles or the Isle of Man”.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  This amendment came about because the common travel area arrangements would apply to flights or sailings emanating from the Channel Isles or the Isle of Man. In the circumstances it is not proposed to treat them on the same basis as territories lying outside the common travel area.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  We might get far more valuable cargo than intended by the Bill if we were to implement checks on flights or vehicles coming from the Channel Islands and the Isle of Man.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The real benefit to the Exchequer would be in checking vehicles travelling to those places rather than coming back.

Amendment agreed to.

An Leas-Chathaoirleach:  Amendments Nos. 5 and 9 are related to amendment No. 3. They may all be discussed together, by agreement.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I do not agree to any grouping. The Bill is far too complicated.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 3:

In page 4, subsection (1)(a), line 22, to delete “persons” and substitute “non-nationals”.

[2054]The Bill, as drafted, will require operators to require Irish citizens to disembark. This is an absurd idea, and will be cumbersome and difficult to apply. There is concern about Ireland's image with regard to the treatment of visitors and citizens. The Bill is an interference with civil liberties and the phrasing in this part of it could be unconstitutional for the reasons I have raised. The Minister should make a statement on this.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  This proposal would change the section to mean that all non-nationals on board a vehicle seeking to land in this State, or pass through a port in the State to travel to another state, would have to disembark in compliance with any directions given by immigration officers. If we were to say that Irish nationals did not have to do so, the question would arise as to who would decide they were Irish nationals as they stared up at the side of the bus.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Their eyes are closer together.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Exactly. Who would make the choice? Would it be the person in charge of the bus—

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Why not?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  —or the immigration officer? The carrier would be obliged to decide who were nationals and non-nationals. Bearing in mind the thrust of the debate has been thus far that it is unreasonable to cast excessive burdens on the carrier, the purpose of the amendment would be to require carriers to satisfy themselves as to who were nationals or non-nationals. It is a misconceived amendment. It may be that related amendments would have more significance at a later stage of the debate, but to substitute “non-nationals” in this provision would be to ask the carrier to make judgments which would be wholly impractical.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I would have thought that immigration officers already had legal power to require people to pass through particular channels or do particular things when they disembark from a ship. Perhaps the Minister might enlighten me about the basis on which they currently give such instructions or require people to behave in a particular way. What changes are we making?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  With respect, we are talking about an amendment. We are not discussing the powers of an immigration officer as much as the obligation cast on the carrier to ensure people comply with directions given by the immigration officer. The suggestion is that the carrier should only ensure that non-nationals comply with the direction and should not be under any obligation to ensure that Irish nationals comply with it. That is a recipe for chaos.

I do not follow the purport of the amendment. I do not understand how it can be correct for an [2055]immigration officer to direct that all persons on board a vehicle seeking to land in the State should get off. I also do not understand the logic behind the suggestion that there should be a new law to allow officers to ask people to alight from a vehicle, ship or aeroplane and present themselves for checking, but that the obligation on the carrier should be limited to cases where non-nationals are being carried.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I want to tease the matter out. I do not understand what is meant by the section. Is it suggested that the carrier is responsible for getting people from the ship to the point where their passport is checked? In Rosslare, that may be a couple of hundred metres. Why are we trying to impose such a responsibility on a ship owner?

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I am seeking a similar clarification. What is the effect of paragraph (a)? Must an immigration officer inspect everyone or can he use his discretion? Paragraph (c) refers to each non-national on board. The legislation is aimed at non-nationals. Part of the reason we tabled this amendment was to specify non-nationals, as the Minister did in paragraph (c).

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am intrigued by the Minister's concerns. Our amendment proposes to substitute “non-nationals” for “persons”. However, section 2(1)(c) states that the carrier is required to do many things for a non-national. The carrier must ensure that he or she has with him or her a valid passport or other equivalent document and, if required by law, a valid Irish transit visa or an Irish visa. The carrier must identify non-nationals in order to deal with the issues referred to in paragraph (c). Why is it acceptable under paragraph (c) to tell the carriers they must identify non-nationals, but it is acceptable under paragraphs (a) or (b)? They must identify and separate non-nationals. It is an affront to Irish people to introduce legislation which states that they must queue as if they were seeking permission to re-enter their own country. It is reminiscent of some of the things to which the Minister referred earlier.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  I am perplexed by the amendment. I am sure members of the Labour Party are inveterate travellers like the rest of us who have been abroad and returned on aeroplanes and boats.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The Senator is not my fellow traveller.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  They must have had to present themselves to immigration officers at the airport or port. It would be impossible for an immigration officer to distinguish—

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  That is already in the law. What does this mean?

[2056]Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  That is the point. This imposes the same obligation.

Acting Chairman (Mr. Dardis): Information on John Dardis  Zoom on John Dardis  Senator Jim Walsh, without interruption. I think the Senator has made his point.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  He has more points to make.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  He wants to make it again.

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  When a person presents themselves, an officer does not know whether he or she is a non-national or a national. An officer cannot distinguish that until the person produces his or her papers. If the people on board a ship refuse to disembark, the immigration officer does not have the authority to go on board. From my knowledge of the shipping business, the captain of the ship is in charge of the vehicle while it is in port. There must be a responsibility on the carrier to ensure that people comply. The thrust of the Bill is to place responsibility on carriers, commercial or otherwise. It seems logical to extend that to give them the opportunity to co-operate with immigration officers to ensure that the Bill is effective. I do not understand the logic behind the amendment.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I want to clarify the effect of this section. Is the State giving up its responsibilities in determining who should or should not apply for —

Acting Chairman:  We should dispose of the amendments before we discuss the section. However, I will give the Senator some latitude.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I am seeking clarification on the section. Is the State reneging on its obligation to assess applications for asylum and putting the onus back on the carrier? It seems the carrier will decide at the port who should or should not travel to our country. That will deny someone the right to seek asylum here. It is the State's obligation, but we are giving that authority to the carrier. Perhaps the Minister could clarify that.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I remind Senators that I am dealing with one amendment because Senator Ryan, in his wisdom and in the spirit of co-operation, told me I cannot deal with any other amendments. I will not, therefore, deal with the intent of the section at this stage.

We are dealing with a proposal to delete “persons” in line 22 and substitute “non-nationals”. The effect of that would be to ask the carrier under the section to make distinctions between directions given by immigration officers in respect of Irish nationals and persons who are not Irish nationals. The purpose of section 2(1)(a), (b) and (c) is to specify duties cast on carriers. Each of the duties must be looked at separately, but the three duties cast in paragraphs (a), (b) and (c) will, if they are not complied with, give rise to criminal liability.

[2057]As regards paragraph (a), there is an obligation on someone bringing a ship to Ireland to ensure that all persons on the ship who are seeking to land in Ireland or to pass through a port here to travel somewhere else disembark in accordance with directions given by immigration officers. That means they cannot loiter in the boiler room until after midnight when all the other passengers have gone and that they must pass through channel A or B if an immigration officer says that is the way they should go.

Any carrier who does not comply with his or her duty and take all reasonable steps to ensure that the passengers disembark in the manner required by the immigration officer attracts to himself or herself a criminal liability. If a ship with 100 people on board is docks in Ireland and an immigration officer says that all passengers intending to land in or pass through Ireland must get off the ship, a carrier who fails to ensure that all passengers are cleared from the ship during the time the immigration officer is present to check their documents will commit an offence and attract penalties for each person he or she does not require to leave the ship in accordance with the directions given by the immigration officer. Likewise, if a carrier was completely relaxed and casual and allowed passengers to spill out and go in every direction but the direction in which the immigration officer indicated they were to go, the carrier would be liable. The purpose of all of this is to impose upon carriers the obligation to ensure that their passengers enter the State in a manner in which immigration officers can exercise the requisite degree of control.

In Senator Tuffy's amendment we are being asked to delete the word “persons” and insert “non-nationals” and, therefore, to bring about a situation where it would not be an offence for a carrier to leave people on a ship at a later stage or to let them wander through whatever channel they wanted as long as they were Irish nationals. If that were the case and one attempted to prove the matter afterwards in a criminal court, one would have to prove that people found concealed on a ship were non-nationals in order to bring home the offence. If they fled across the fields, or whatever, one would not be in a position to prove the case at all.

It would not make sense to do what Senator Tuffy is suggesting in this case and I ask her, respectfully, to withdraw her amendment.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  The point made by Senator Ryan is a good one. I am not altogether confident of the terminology of our amendment but it is more than reasonable to point out that subparagraph (c)already defines a difference and puts obligations on a carrier in respect of non-nationals. That in turn suggests that there is, therefore, a requirement on ship owners, for example, to distinguish a non-national from a national. I am not sure how they are meant to do that. Are they to corral non-nationals into a hold of the ship? Nevertheless, as things stand there is [2058]a clear obligation on them to distinguish between the two. It seems to me that is not reasonable.

With regard to what the Minister has just said about the liability of a carrier, I am not sure that I am in sympathy with this idea. Brittany Ferries, for example, is a large and profitable carrier owned by a French company. It is not reasonable for the State to impose even on that company an obligation to ensure that people disembark through a particular channel in Rosslare. Surely it is our job to use our immigration forces, if that is the right word, to ensure that is done in the way we want it done. To say the ship owner has some responsibility for that is an extension of a liability which is not reasonable. Whatever one may say about checking documentation when passengers embark, to say it is the ship owner's responsibility rather than ours to see they disembark in a certain way is not reasonable.

I assume immigration officers have powers to enter and search ships docked in Irish ports.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  There are powers but, I hesitate to say, it is under the Aliens Order. It is probably politically incorrect to use that language but that is the way it is, I am afraid.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  So immigration officers already have the power to require people to go through a particular channel, for example, or to go onto a ship and inspect it?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Exactly.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Surely that should be sufficient.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  This is a carrier's liability Bill. It is a touching and welcome development that the Labour Party should seek to transfer to the State, which is not making a profit from this transaction, all the extra costs of ensuring that people comply with the law and to exonerate the private companies who are making profits from any duty to ensure that they fulfil their part of the bargain and present their passengers in an orderly fashion to the immigration officers of the State. I do not follow this new found concern for privately operated airlines, because nowadays most of them are privately operated, as Senator McDowell will know—

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Not all of them are.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  —and suddenly to cast on the State the obligation to make sure that all of these things are done.

I agree with Senator McDowell that subparagraph (c) uses the term “non-national” but in this wonderful republic of ours it is the prima facie right of an Irish citizen to get back into Ireland. The absence of an Irish passport is not a reason for someone who can otherwise establish that he or she is an Irish national to be refused the right to enter the country. We do not want to prevent someone who has lost his or her Irish passport [2059]from being carried or who loses it overboard when the ship is docking, to be made to go back to France unnecessarily.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I am not trying to be disruptive. I am simply inquiring whether the Bill obliges a carrier to distinguish who is a non-national and who is not.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  We have to be realistic and look to the rest of this section to determine to nature of the obligation being cast on the carrier by section 2(1). It is a defence for a person charged with an offence under this section to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with the provisions of the Act. It is a reasonableness test. In order to decide whether he or she is carrying undocumented people a carrier must make a reasonable stab at deciding who are the Irish nationals and who are not. The best way to do that is to ask them to produce documents and Irish people will, in all probability, prove they are Irish nationals by producing Irish identity documents of one form or another. In those circumstances if all reasonable steps have been taken to ensure they were Irish citizens the carrier has complied with his or her obligation under the Act.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Since the first three subsections relate to what happens when passengers have disembarked, does the Minister envisage ship owners checking as people are about to disembark to separate the nationals from the non-nationals and to double-check passports?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Being reasonable, it is more practical in this day and age to look at air passengers, who are the majority of people who travel to this country from outside the common travel area. In those cases reasonable steps to comply will establish a full defence under section 5. The requirement will be complied with if the carrier arranges that a passenger travelling on his or her plane produces a travel document which is valid for travel to Ireland at the time he or she checks in and boards the flight.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Even though most carriers do not operate the check-in desk.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  They do. The Deputy seems to think that because a different person does the check-in this affects the operation of this law. If the carrier delegates that duty to someone operating a check-in counter at a foreign airport—

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  There is no reference to delegation.

Mr. M. McDowell: -: Information on Michael McDowell  Zoom on Michael McDowell  it is the carrier's duty to ensure he or she is carrying people who are documented. If a carrier makes an arrangement [2060]with Servisair in Charleroi airport, for example, to carry out this function the carrier will be guilty if he or she produces someone in Ireland who is not documented. The carrier may say he or she has done everything that could reasonably be done. One of the things the carrier must reasonably do, if the check is not carried out by him or her, is provide someone competent who he or she can prove has carried out the check on the carrier's behalf. The carrier will be liable for the criminal penalty and it is a matter of indifference to the Irish State if he or she has some contractual arrangement with Servisair in Charleroi Airport whereby the carrier gets reimbursed for every mistake the private enterprise co-partner makes in this area. If there is laxness on the part of those who do the checking in and the carrier incurs a liability on that account, that is the carrier's problem.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I will not labour the point but I believe we have a difficulty here. The people who are doing the checking are not actually liable. Servisair, or whoever, in Charleroi Airport does not have a liability. The people who delegated the duty to them have the liability and there is no reference to delegation in the Bill.

This is unreasonable. One can get into virtually any Irish airport without producing a passport and one may well have started one's journey in a French regional airport where procedures are quite lax. If we want to prevent immigrants getting through, for example, Farranfore Airport having come from an airport in France it is for the Irish State to provide immigration facilities in Farranfore rather than insist that Servisair do so in Montpellier, for example. We are putting too much onus on the carriers.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Either we are interested in making an operable law or we are not. The Labour Party must decide if Ireland is to be the only country in the European Union which does not have carrier liability. Has the Labour Party an ideological objection to this or does it not?

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  My ideology is that the Minister tried to prevent efforts at the European level—

Acting Chairman:  This is an interesting dialogue but can we have a debate?

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  He is the one who has the ideological problem.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Let me deal with this matter. Either we have a carriers' liability law or we have not and it is either a workable law or it is not.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  There has to be a balance between our responsibilities as a State to operate an immigration policy and the liability of carriers.

Acting Chairman:  This is Committee Stage.

[2061]Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The more the Senator interrupts the bigger and the deeper the hole he is digging for himself. It is probable that tonight's proceedings will not receive great publicity. If the people of Ireland heard the specious arguments being thrown up, one after another, with the best of humour, against putting in place a workable law which puts Ireland on a par with every other European Union member state and that Senator McDowell was asking me to accept that a carrier will be exempt from liability, because a different company or agency checks people on to flights, and therefore that I cannot have carrier liability because it is unfair and that Irish immigration officers should do the work themselves, the only logical explanation I can think of is that he wants to maximise State employment in Ireland and recruit a Border police who spend their days checking everybody who comes into this country.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  We are taking this debate seriously.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The reality is that what I am being asked to do here, because Senator Ryan insisted on it, is to debate the substitution of one word for another. He would not allow me group amendments because he is so enthusiastic to subject the Bill to line by line scrutiny.

I am dealing with a suggestion that all persons should not be obliged to disembark in conformity but only non-nationals should be asked to do so. I reiterate that if a group of representative Irish citizens heard the arguments being made here they would realise we are running into a barrage of obstruction with little sense behind it.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Perhaps it is as well to ventilate some of this because—

Acting Chairman:  We are dealing with the substitution of words.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  Indeed we are and I will address that in a moment. However, I want to respond briefly to what the Minister has said. Surely, this Bill is about finding a balance as to who operates the immigration service, the carrier or the immigration service proper. Immigration officers here have a great deal of powers. As Revenue officers, they are vested with quasi-judicial powers, certainly investigative powers and powers of search which are serious. These powers are given to them by the State under statute and it is right and fair that they should be. What the Minister appears to suggest is that rather than give the immigration service the primary responsibility for enforcing the immigration laws of the State it should be transferred to Ryanair or Aer Lingus. It is not unreasonable to impose some obligation on carriers, whether ferry owners, ship-owners or airlines, to ensure compliance with the immigration laws, but the Minister is transferring the entire onus to them and suggesting it is in some way unreasonable for us to criticise that fact. That [2062]is not an unreasonable stance to adopt and we will continue to do so for the rest of the evening and beyond. That the Minister should determine that argument as specious is strikingly wide of the mark.

In regard to the amendment, the Minister and I have never managed to get through these issues easily. The specific point raised by Senator Ryan was that carriers are already obliged to treat non-nationals in a different fashion from the way they treat nationals. He has correctly described the position as to why that should be the case. It strikes me that that causes practical difficulties in terms of how it is done on board ship and whether it requires checks to be made before disembarkation. If the Minister is giving an assurance that he would consider such a check would be unreasonable or unnecessary in order to comply with the Act, I will accept that.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I have some sympathy with the Minister's position on this matter, particularly with regard to the responsibility of carriers. With the proliferation of franchising out – Servisair and Ryanair are also being bought in – it appears the Minister's position is reasonable to a certain extent and is also the prevailing situation in other jurisdictions. I am profoundly glad it is the carrier, whether Ryanair, Aer Lingus or the agent, Servisair, that is responsible and not the individual. I have had experience of this. I managed to get on an aeroplane some years ago in London and apparently I was not properly checked. When I looked at my passport I found I did not have a visa which was then required for the United States. It was in another passport and I was very relieved to find that British Airways was fined something like $20,000 and I was not.

Acting Chairman:  Can the Senator demonstrate the relevance of this to the Bill?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  We can note its relevance.

Acting Chairman:  The Senator is back.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Yes. Did the House feel I was away?

Mr. J. Walsh: Information on Jim Walsh  Zoom on Jim Walsh  If responsibility is not put on the carrier, effectively one is facilitating those involved in criminal activities involving asylum seekers and refugees. A carrier who is operating in good faith and has passengers on board will have no difficulty in complying with the Bill. Obviously, if he is doing it surreptitiously for profit or other motivation he will have difficulty because he will be seeking to conceal them.

It behoves us, unless there is an intent to make the Bill unworkable, which I hope is not the case, to comply with the wording set out. To seek to change it, as the amendment suggests, leaves it open for a coach and four. I ask the Labour Party to be upfront if it is opposed to the thrust of the Bill but not to hide pedantically behind this type of amendment.

[2063]Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  As a general principle, many of these journeys can be long and tiring. If the people who are being carried will not be admitted at the other end because their papers are not in order or there will be some lengthy procedures, it is far better that they do not embark on the journey in the first place. There is an obvious need here and anybody who has been travelling for the past 40 years will be aware of this. By and large carriers have been doing this work, but the pressures are much greater today and all of this needs to be made systematic.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I ask the Minister and Senator Jim Walsh to appreciate that we on this side are not being obstructive or pedantic. In the long tradition in this House we are proud to play our role in closely examining legislation and giving it the scrutiny it deserves, especially if it happens to be the second last sitting day before Christmas and it is legislation such as this. The legislation requires line by line scrutiny and that is what it will get.

Amendment, by leave, withdrawn.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 4:

In page 4, subsection (1)(a), line 24, to delete “in compliance with” and substitute “if required to do so by”.

The reason we demand this is that total disembarkation should not be mandatory. The implication in the subsection is that it will be mandatory, which is over the top. It will be cumbersome and difficult to enforce. The Minister has spoken about how Irish citizens would feel listening to this debate. How will they feel if these sections are implemented? It is a bit much to treat them in this way.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I do not see anything over the top in requiring a carrier to present all passengers to an immigration officer for examination. If I was to accede to the Senator's amendment, it would mean that only non-nationals would have to be presented. Therefore, if people scarpered across the airport fields or disappeared off the ferry and ran, I would not be able to prove who they were. I would then have a difficulty in proving a breach of duty because I would not be able to prove the status of the people I could not find. Let us be reasonable about this. I am sorry, I thought we were talking about amendment No.5.

Amendment No. 4 concerns the replacement of “in compliance with” with “if required to do so by”. “In compliance with any directions given by immigration officers” is the phrase used in the Bill. If a direction is given, it must be complied with. The phrase, “if required to do so by,” has the same meaning. If an immigration officer does not give a direction, there is no failure on the part of the carrier to adhere to the duty cast on him by the section. An immigration officer will only [2064]give a direction when he or she chooses. The meaning of the two phrases is the same.

I accept what Senator O'Meara said about the need to examine legislation carefully. I am trying to make reasonable progress with the Bill so as to save her from the wrath of the Leader of the House who might be tempted to take the view that inadequate progress has been made and resort to more draconian tactics to ensure a proper pace is adhered to.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  The Leader is a reasonable woman.

Acting Chairman:  The qualities of the Leader are not relevant to the amendment or the section.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  The way the section is worded implies that it will be mandatory to disembark. It would be better if it was worded as suggested.

Amendment, by leave, withdrawn.

Acting Chairman:  Before discussing amendment No. 5, I draw the attention of Senators to the fact that we are dealing with the same words as those in amendment No. 3. I do not know of a previous occasion when the House did not group amendments that were the same. While I do not dispute the rights of the House, I ask Senators to try to avoid repetition.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 5:

In page 4, subsection (1)(b), line 26, to delete “persons” and substitute “non-nationals”.

This section refers to permission to land. Would it be constitutional to impose such a requirement on an Irish citizen?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  An Irish citizen is prima facie entitled to enter Ireland. This does not inhibit the rights of Irish citizens to behave as they wish. All it does is cast on the carrier the obligation to take all reasonable steps to ensure everybody on board a aeroplane or ship presents himself or herself to an Irish immigration officer. Whether the Irish citizen has rights in those circumstances is immaterial.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  What is the difference between landing and disembarking?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Senator should consult the Act, the name of which he does not like – the Aliens Act and the aliens order. “Permission to land” is the term used in the Act, which can mean somebody standing on land. It is given a specific statutory meaning – it effectively means permission to enter the State.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  The simplest way to solve these problems is to ask the Minister who has more [2065]resources. It is easier to ask him than to spend endless hours searching through the Acts of 1933.

Amendment, by leave, withdrawn.

Acting Chairman:  Amendment No. 6 is in the name of Senator Norris. Amendments Nos. 7 and 8 are alternatives. Amendments Nos. 11 and 21 are related to amendment No. 7. It is proposed, therefore, that amendments Nos. 6, 7, 8, 11 and 21 will be discussed together by agreement. Is that agreed?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  We indicated that we would not agree to any grouping of amendments.

Acting Chairman:  This is the amendment proposed by Senator Norris.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Amendments Nos. 7, 8—

Acting Chairman:  We are on amendment No. 6. If it is not moved, we will move on to the next one.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am prepared to move the Senator's amendment with the permission of the House.

Acting Chairman:  Has the Senator received Senator Norris's permission to do so?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  No.

Acting Chairman:  Does the Senator presume he has permission?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I do.

Acting Chairman:  As amendment No. 7 is an alternative, we will proceed to deal with it.

Amendment No. 6 not moved.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I move amendment No. 7:

In page 4, subsection (1)(c), line 29, after “non-national” to insert “(other than a non-national seeking or proposing to seek asylum in the State)”.

Our purpose is to ensure we do not exclude those coming to this island seeking asylum. The section, as phrased, makes it more difficult for asylum seekers to come here. It will probably lead to more instances such as the one that occurred in County Wexford last year. It is unacceptable not to allow exceptions for genuine asylum seekers.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  This is an important point. It comes down to who decides which person is a legitimate asylum seeker entitled to asylum here. We contend that, after lengthy debate in both Houses, there is a complex procedure in place for deciding who is entitled to asylum here. We should not impose on carriers an obligation to make a decision, prima facie or otherwise, as to whether somebody is a genuine person entitled [2066]to asylum. Clearly, if someone arrives here from France, we would say, on the face of it, that the Dublin Convention should apply and he or she should be returned to France. Whether it does apply or whether he or she is returned is a decision that should be made by an immigration officer who has power to decide if an application is manifestly unfounded. That is the point at which a decision should be taken. It should not, under any circumstances, be taken by a carrier, whether a aeroplane or ship operator.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I support this amendment. The carrier is the person who will decide whether somebody is fit to land in the country. This takes away the responsibility from the country to decide on and assess an application. The effect of this section will be to drive forward the illegal passage of persons into the country and put lives in danger, as happened in County Wexford some time ago. Putting the onus and liability on carriers will encourage illegal immigration.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I understand the Chair does not wish me to refer to my amendment. Is that correct?

Acting Chairman:  The Senator may speak to amendment No. 7, which is an alternative to amendment No. 6.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  With reference to amendment No. 7, I prefer amendment No. 6. I apologise for my absence from the Chamber to take a telephone call in my office. Unfortunately, my departure appears to have been somewhat ill-timed. I will not rehearse matters, having made the argument at an earlier stage of the debate as to why this section should be deleted. Since this has, apparently, dropped off the legitimate business of the House and has not been referred to, I shall simply put it back for Report Stage.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  I question the merits of saying, by deletion or amendment as proposed, that asylum seekers should not have any form of identification. There would appear to be a certain contradiction in people seeking asylum without being able or willing to say who they are or from where they have come. In my view, there is no valid objection to a requirement by the State for the production of some such documentation with regard to their identity.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I must admit to some surprise that those amendments have been tabled. Section 2(1)(c) places a requirement on a carrier to ensure that a non-national has the proper documentation – a valid passport or other valid document which establishes his or her nationality and identity and, if required, a valid visa or transit visa. All that is required of a carrier is that he or she carries out the rudimentary task of checking the passenger's documents to ensure they are in order. Nothing more is necessary. Carriers' staff will be helped, as some already are, by training [2067]and advice from immigration officers to enable them to spot the more obvious forgeries and falsifications. Basically, however, it is a fairly mechanical task. If an intending passenger presents with insufficient documentation at a port of embarkation for Ireland, it is no different to turning up with insufficient money for the fare. All the carrier has to do is tell the intending passenger he or she cannot travel on that day.

If amendment No. 7 was accepted, further responsibilities would be thrust on the carrier to make more personal inquiries of the intending passenger by asking questions such as: “Do you intend to seek asylum in Ireland?” How could we possibly have that? What is the position of Labour Party Senators in relation to the Dublin Convention? In the vast majority of cases, flights and shipping services bringing passengers to Ireland are originating from Dublin Convention countries. Are we to say that anybody who forgets his or her passport may insist on boarding on the pretext of being an asylum seeker? That would be wide open to abuse. Let us be more realistic in this regard. If we are imposing carrier's liability, we cannot expect every check-in desk to become a mini-tribunal, asking passengers their reasons for travelling to Ireland and trying to establish whether they are genuine asylum seekers. We cannot have a situation where a person without any documents whatsoever can evade the requirement to produce documentation to gain admittance to Ireland by simply stating to a Servisair employee at Charlerois Airport, or wherever, that he or she intends to claim asylum in Ireland. We must live in the real world. How could we possibly legislate on the basis that a person without a visa for entry to Ireland can board a flight to this country by simply saying the magic words, “I intend to claim asylum in Ireland”?

I appeal to the Members of this House to be realistic in this matter. If that were to be the law, we may as well throw out the Bill in its entirety. Nobody in his or her right mind would bother to produce a passport if he or she could simply engage in the verbal formula of saying he or she is considering making an asylum application on arrival in Dublin. There is no substance to that proposition.

While I appreciate that Senators are anxious to facilitate asylum seekers in some way, I have indicated publicly that one of the balancing mechanisms I intend to put in place is that Ireland will accept programme refugees under United Nations arrangements. That will involve people about whose status there will be no doubt, because they will be presented to this country by the United Nations as genuine refugees who will not have to go through all the procedures of making applications to commissioners or going through legal processes of appeal and so on. If I were to accept this amendment, the effect would be that a person could board any flight to Ireland, without any documentation, subject only to paying the airline in question and stating that he or [2068]she intends, or is considering, making an application for asylum on arrival in Dublin. Rather than using the term I was about to use, I will confine myself to saying that is somewhat unrealistic.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  Does the Minister agree there is a strong possibility that an asylum seeker would not have valid travel documents? Do we want to prevent genuine asylum seekers coming to this country?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I take the Senator's point but my response is to ask if this Bill should be emasculated to the point that anybody presenting without travel documents at any check-in anywhere in Europe or America or wherever and intending to claim asylum in Ireland should be ushered on board a plane? If that is to be the situation, not only should we abandon this Bill, we should also abandon all immigration controls. Ireland would become an easy target for those without any documentation as they would simply have to pay the fare, board a flight to Ireland and arrive in Dublin.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Is that not happening at present?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  At least such people are now required to provide visas.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  In the absence of carrier's liability, why are people not flooding in now?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Many people are doing so.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Flooding in?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  It was the Senator who used that term. There are roughly 12,000 people claiming asylum status in Ireland.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  There is an interesting distinction to be made in this regard. I assume the Minister would claim the Immigration Bill, 2002, is intended to cut down on illegal immigration to this country. What he is not telling the House – and perhaps it follows logically from his comments – is that it is also intended to provide another rung to prevent people from seeking asylum in Ireland. That rung will not be provided by the immigration service, the Garda or other forces of the State, but by airlines. In effect, the Minister requires airlines to determine whether people are genuine asylum seekers. As Senator Tuffy has pointed out, many people seeking asylum do so on the basis of either having no documentation or having documentation which is forged, inaccurate or incomplete. That is quite commonplace, as the Minister is well aware. That is one of the difficulties in the Bill.

If one transfers to airlines responsibilities which are properly carried out by the forces of law, the end result is the situation which will arise under this Bill. As the Minister has said, somebody at an airport check-in desk will decide whether an intending passenger is a genuine asy[2069]lum seeker. The Minister may wish to have it that way but we do not. We take the view that, as the Minister is well aware, if people arrive in Ireland with a manifestly unfounded case, immigration officers are already empowered to turn them back. I see no reason to give that power to a person sitting at a check-in desk in Charleroi Airport or elsewhere.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  I wish to make two points. First, how genuine is an asylum seeker who presents false documentation? Is there not a contradiction in terms there?

(Interruptions.)

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  On each occasion one travels to an airport in continental Europe, one is required to produce a valid passport because one will otherwise be refused entry. As a matter of routine, therefore, airlines are doing some preliminary pre-emigration checks for all of us. I cannot see what is the problem with this principle, because it is an everyday occurrence everywhere.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  The chances of an Iraqi refugee getting a valid passport to travel Europe are nil.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I was appalled by what I heard Senator Mansergh say. He asked whether people coming here are genuine asylum seekers if they do not have regular documentation.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  I said “false documentation”.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Has the Senator ever heard of Raoul Wallenberg?

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  No.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  He won the plaudits of decent people throughout Europe for issuing false documentation so that people could escape in these circumstances. Senator McDowell's point that the last thing people who are threatened by a regime will do is apply for travel documentation to officials of that regime is well made.

I wish to seek the Minister's advice on the related matter of definitions. Does the carrier – referred to in this section in relation to a mechanically propelled vehicle – mean the person in charge of a vehicle?

Acting Chairman:  The Senator knows that is a matter to be dealt with when we come to consider the section.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I did not know that.

Acting Chairman:  The Senator should know it.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I am seeking information from the Minister. If a lorry enters a ship, there are essentially two carriers – one travelling inside the other. The lorry, which is presumably under the [2070]control of the lorry driver, is inside the ship which is presumably under the legal jurisdiction of the captain.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Like Russian dolls.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Exactly. That is a very good analogy, for which I thank the Minister. In this case, which person is liable and responsible under the terms of section 2? Is it the captain of the ship or the lorry driver? Can it be one or the other?

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am intrigued by the number of references to people departing from Charleroi and God knows where else. I thought this section concerned people on board vehicles. Subparagraph (1)(c) refers to “each non-national on board the vehicle seeking to land .”.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Senator should look at the definition in section 1.

Acting Chairman:  Section 1(1) states that “‘vehicle' includes any ship, boat, aircraft or mechanically propelled vehicle within the meaning of the Road Traffic Act, 1961.”

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am not referring to vehicles.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The term “vehicle” includes those things.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am talking about the issue the Minister raised. If somebody presents themselves in Charleroi, the Minister implied that our amendment would mean they could simply say they were going to seek asylum in Ireland and had to be allowed on board the plane at Charleroi. If the section referred to embarkation before they got on board the ship, plane or other vehicle, then the Minister would be correct. However, the section refers to when a vehicle arrives in the State, not when it leaves the point of departure. I am only citing this because it is entirely relevant to the amendment.

Acting Chairman:  I am glad the Senator said that.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I do not know how one can arrive in the State in Charleroi or Roscoff. If it is discovered on board the vehicle that somebody does not have proper documentation and if they then say they want to seek asylum, the carrier should not be penalised.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  This Bill is definitely seeking to reduce the number of people seeking asylum here. While I respect what the Minister is trying to do, I am extremely concerned about the genuine people who wish to seek asylum and who will be denied that opportunity because of the Bill. I accept what the Minister said, namely, that he will introduce some measures to address the cases of people in exceptional circumstances. He should take into account the need to address such [2071]cases as quickly as possible, however, rather than putting them on the long finger. We have a responsibility to those who suffer persecution in their own countries, but the Bill will deny them the right to seek asylum here. We are abdicating our responsibility to assess such asylum applications and giving it to a carrier.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  As Senator Terry pointed out, the Bill will make it more difficult for people to enter the country illegally. Consequently, it will inevitably have the effect of making it more difficult for asylum seekers – I do not like the term “genuine asylum seekers”– to seek asylum here.

Acting Chairman:  We are getting to the point of re-opening the Second Stage debate.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I am not re-opening the Second Stage debate, but a number of people on both sides of the House have been using the term “genuine asylum seekers”. I simply wanted to say that it is a problematic term. It is better to use the general term “asylum seekers”. We must be aware of our responsibilities concerning asylum seekers.

As regards Senator Mansergh's comments, it is often a fact of life that asylum seekers will either be carrying false documents or none at all. If such people leave a country under threat of death while trying to save their families, it is quite possible they will be travelling with false documentation in order to seek asylum elsewhere. The Minister should take into account the genuine concerns contained in the amendment.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  I have listened attentively to the debate and I consider the amendment to be worthy. The issue comes down to economics, because the Minister does not want to employ additional staff to man the ports or other points of entry into the country. How many people who emigrated to America from this country over the years were returned? It would be unfair to place the onus on carriers, including Aer Lingus and others, and fine them for taking Irish people whose papers were not in order to America. In the past, people who were found to be entering the United States illegally were sent back home. We now find ourselves in the same situation with people coming here illegally, but the legislation proposed by the Minister places the entire responsibility on carriers.

The Minister should consider the position in which this country has been for the past 20, 30 or even 50 years. People left Ireland on a nod and a wink basis, saying they had gone through immigration. When they arrived in America they were sent home but the carrier was not fined. The amendment is good. The Minister is taking all the responsibility away from the State and the immigration authorities and placing it on the carriers. That is very unfair. We are all aware of cases where people will try to get on board a plane, [2072]with a nod and a wink at the airport. Those people arrive here illegally. Responsibility for them is now being transferred from the State to the carrier. I ask the Minister to either accept the amendment or reconsider the matter for Report Stage.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I have listened to the debate with interest and it seems that most of the contributions are based on the proposition that there is some kind of radical chic to completely confuse economic migration with asylum seekers. This amendment deals with asylum seekers, it has nothing to do with Irish people going to America.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  The Minister missed the point.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  We are dealing with an amendment which seeks to provide that a person presenting himself or herself as an asylum seeker should be allowed to board an aircraft.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Somebody who is already on board.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Senator Ryan has never had to operate an airline. No airline can operate a system whereby it checks people are properly documented when they arrive at their destination. No airline will do that because it would lose money hand over fist by having to pay to send them back again. This legislation will require the documentation of every person travelling to Ireland to be checked before boarding. That is the reality of the situation. Anybody who thinks differently is codding himself or herself. It is self-delusional to think we could operate any other system.

Senator Norris's telephone call enabled him to miss Senator McDowell's espousing of the Russian dolls question. He will see from the record of the debate that I dealt with the point. The crucial point is, are we being real about this? Is Ireland to be the only EU member state without carrier liability? Is that the point? Carrier liability may have the effect of making it more difficult for undocumented persons to come to Ireland. I accept that. It will have that affect. Is it the position of Fine Gael or the Labour Party that Ireland is to be the only EU member state which does not operate this system of law?

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  That is not true. I asked about genuine cases.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I know. Either we have carrier liability law or we do not. The public would be surprised and shocked to hear the position being taken by Fine Gael and the Labour Party.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  That is unfair.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Senator will have plenty of time to reply. This is an open-ended debate so far. We must face reality. Ireland is the only member state of the European Union with[2073]out carrier liability law. There would be no point in having this law if I were to accede to the amendment that a person not incur any liability where he or she declares an intention to claim asylum thereby rendering him or her exempt from having his or her documentation checked. Anyone could breeze onto a plane holding a card declaring an intention to claim asylum in Ireland. Let us get real here, either we have this law or we do not. We cannot have a nonsensical law which is circumvented by a verbal formula printed on a card which allows everybody at the check-in counter in any airport in the world to request to be taken to Ireland to claim asylum.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  Is that the current position?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  No, it is not. As things stand, one cannot board a flight to America without a visa. Aer Lingus would not carry a person who is not properly documented. The airline would not do it because it would have to bear the cost of bringing that person back.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  American immigration does that job for the airlines.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Yes. That happens at some airports.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  It happens at Dublin and Shannon Airports.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The point I am making is that one does not board a plane to America undocumented.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  Nobody on this side is suggesting that would happen.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Yes, there is. The purpose of the amendment is that a person would incur no liability if his or her documents were false and he or she was claiming asylum in Ireland. We cannot have laws like that. Anybody who thinks we should, should go out to the plinth and tell the Irish people that he or she supports the idea of an undocumented person being able to arrive at Dublin Airport simply because he or she wishes to claim asylum here. That is the logic of this amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  That is not what we are saying.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Yes, it is. Let us be clear about the point that was argued. It was said that Senator Mansergh's point was unrealistic when he argued that asylum seekers with no documentation or forged documentation would be picked up at the check-in desk at the airport. This is a nonsense. If some Members are against the Bill in principle, so be it. They should vote against it at the end of the debate. There is no point putting forward propositions which, effectively, turn it into fairytale legislation.

[2074]I ask Senators to consider this point. How many flights or scheduled passenger ship services come to Ireland from outside the European Union, the candidate states for the European Union, the United States of America or Canada? How many flights come directly into Ireland from these places? A handful. It is not possible to fly from most places to Ireland without touching down in North America or the European Union. There are some exceptions such as Prague, Moscow and Cuba. Senators opposite will know that nobody from Cuba would want to seek refuge in Ireland.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  If the Minister continues as he is, some of us might feel like heading that way.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  Let us be real. We are talking in general terms about our putting in place laws which already operate in every other EU member state. This amendment seeks to ensure that we put in place some paper law which means nothing at all. I cannot understand the logic of that.

If one exempts from section 2(1)(c) any person who is an asylum seeker, one casts upon the airline, be it on the tarmac in Dublin or at the check-in in Charleroi, the obligation to at least receive a statement from an intending passenger that he or she wants to be allowed to travel on the basis that he or she is an asylum seeker. One casts upon them an obligation to work out bona fide cases. I was castigated earlier for trying to pass the State's obligation onto the airlines. This amendment asks the airlines to run an immigration service at every airport in Europe. We cannot do that. Let us be fair about this. We can argue the principle of this Bill all night but it is pointless to put up spurious and specious arguments which would effectively destroy the Bill and render it inoperable. I do not think I should be asked to accept such amendments.

I say this in the best spirit. I will be here until 8.30 p.m. and until the Leader of the House loses patience, some Minister will be here to present and deal with these amendments. If we are to make progress we must move on to real and substantive amendments which will make a difference, rather than spending time on vacuous amendments which are totally inoperable.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  What we are seeking to do is to allow asylum seekers to reach this State. The Bill, as drafted, could prevent asylum seekers coming to this country. Is that what we want? The Minister referred to people who are not genuine asylum seekers but who are economic migrants. If there was proper immigration legislation which allowed for a green card system, this issue would not be as big a feature of the system.

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I resent the Minister's comment that the amendment is vacuous because it is an important point. He is suggesting that only asylum seekers properly documented deserve to [2075]be allowed to land here in the first instance, which I cannot accept. He knows better than anyone that we have in place a very complex and expensive system for considering the applications of asylum seekers. It begins with the immigration officer and runs right through to the refugee tribunal. It is a very complex system which both Houses spent a lot of time debating and putting in place and is costing several hundred million euro per year. The Minister and Senator Mansergh are saying this measure applies only if asylum seekers or refugees are properly documented. I cannot accept that is the case because, as we know well, many asylum seekers are not properly documented and some are undocumented in the first instance, which is the central point. To suggest the amendment is vacuous is way over the top, to put it mildly.

On a much more frivolous note, I join the Minister in wishing his party leader well on her holiday in Cuba at the end of the month.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  If someone has all the proper documentation neatly in order, he or she is less likely to be a genuine asylum seeker or refugee. If someone is in a situation of peril, very often he or she will have considerable difficulty in acquiring documentation. As that point has been made previously, I will leave the matter. I agree with the Minister that if one is not going to win, one might as well move on and try to achieve some measure of negotiation.

If this is an appropriate time, perhaps the Minister will answer the question I posed earlier. If a lorry is inside a ship, who is the carrier? Is it the lorry driver or the proprietor of the boat, the captain of the ship? As I understand it, in normal circumstances ultimate authority legally lies with the captain who has ultimate authority and jurisdiction over everything on his or her ship. It is not fair to penalise in this draconian way individual lorry drivers who may not have full responsibility.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I respect what the Minister is doing and believe we need to have controls in place. The fact that we have no controls is putting great stress and strain on the resources of the State. If one was to consider the asylum applications of the many who have come to this country, perhaps their applications would not be granted. While I agree we need controls, I am concerned that we must make provision for exceptional cases. That is the point I have been making since the beginning of the debate. The Minister cannot say we are trying to throw out the Bill or that we wish to leave our ports open. While we need to have controls in place, we must provide for exceptional cases, which the legislation does not do.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Like Senator McDowell, the reason the debate is proceeding slowly is the Minister seems to be incapable of accepting that the Opposition might have a decent idea about this issue [2076]which is actually different from his. He seems to have a need to use words like “realism,”“vacuity” and so on with great enthusiasm. There are more ways than one of being vacuous and unhelpful. Producing complicated amendments out of a Department at the last possible moment and causing considerable inconvenience to members of the Opposition is a fine way to make life slow and difficult. It was not our fault that a whole set of amendments was produced late in the House. If the Minister wants to become involved in that sort of activity, let him begin by having the grace to acknowledge that one of the reasons the issue has become complicated is the Bill was left on the Order Paper untouched for the past four months and, out of the blue, without any advance warning to the Opposition, listed for this week. Having been listed for this week, amendments arrived yesterday evening—

Acting Chairman:  The Senator is repeating arguments that have been repeated several times already and have nothing to do with the amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I will make a deal with the Acting Chairman. If he asks the Minister to stop using words like “vacuous” and so on, I will stop talking about the reason we are all a bit irritable over here.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  The Senator is filibustering.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  It is a reasonable position. The Minister can suddenly have a little humility and realise he was dead late—

Acting Chairman:  The Chair will operate Standing Orders.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  —and depended on the good nature of the Cathaoirleach to accept his amendment, as we all have from time to time. The reason the matter is in this state tonight is it deserved to be dealt with maturely with some time for the Opposition to think about what the Government was trying to do.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  The Senator is filibustering.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  When I conduct a filibuster, Senator Mansergh will know about it. This is not a filibuster. The Senator is not here long enough to know what a filibuster is, but I can conduct one. A Member on his side of the House spoke for 26 hours one day.

Acting Chairman:  The Senator should prevent himself from being provoked and speak to the amendment.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I ask the Minister to come back to the question of the reason he engaged us in this issue about the point of embarkation when the legislation for which he is responsible deals with people on board the vehicles in question. Why [2077]will he not deal with what is included in the Bill, that is, people on board vehicles? He has repeatedly used the argument that this is the only country which does not provide for carriers liability, but that is to simplify and distort what is happening. First, we are declining to employ this measure within the land borders of the State. I suspect many other countries make similar exceptions. Large parts of the European Union are covered by the Schengen Agreement. Therefore, they do not have passport checks. People are free to travel between states within the European Union. Carriers liability cannot arise since there is no obligation to carry documentation.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  The Dublin Convention applies to movement inside the Union.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  As the Minister knows and many have explained, the Dublin Convention has not worked. Therefore, to try to use as an argument something that has never worked, never been applied and never been tested is vacuous.

We are talking here about people who will have no documents. That is the fundamental reality – the Minister has spoken a lot about getting real. In every conflict in the world, of which there are many, there are people desperately trying to get out. The last thing these decent and persecuted people will do is ask their state authorities for permission to leave. When people crossed the Berlin Wall while being fired at by their own police force, no one asked them for documentation because it would have been nonsensical to do so. When thousands crossed the Border here in 1969 in the face of considerable hostility, no one from Senator Mansergh's party asked them to prove they were entitled to our hospitality because we knew they were people in need. People in need do not carry papers.

Acting Chairman:  The Senator is making a Second Stage speech.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am not. The Minister and Senator Mansergh raised the issue of asylum seekers and documents.

Acting Chairman:  The Senator has illustrated the point very well.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am about to conclude in the face of the Acting Chairman's considerable tolerance. This is not just a Labour Party argument. All the arguments about the complexities and difficulties of the legislation have been articulated by virtually every voluntary group in the State concerned about the rights of asylum seekers. These are people who work with asylum seekers, care and provide services for them and have absolutely no interest in facilitating illegal immigrants in the State. It is a gross offence to all of them and their concerns to suggest our legitimate amendments are anything other than an attempt to deal with the reality in Ireland today. I get the impression that the Minister wishes for a return [2078]to the reality of 40 years ago, when we were all white, harmless and never thought about anybody else.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  The Minister said that Ireland is the only country in the European Union that does not have carrier liability legislation. I thought this Bill was brought forward by the Minister, but it obviously emanates from Europe. Is it fair to suggest that EU laws apply to Irish carriers like Ryanair and Aer Lingus going to other European countries such as Spain and France on routes such as Dublin to Malaga?

Mr. D. McDowell: Information on Derek McDowell  Zoom on Derek McDowell  I apologise for not making this point when I last intervened. I wonder how the Minister squares what he is trying to do in amendment No. 11 with his definition of what my party is trying to do in this amendment as “vacuous”. It seems to me that amendment No. 11 involves, in effect, an acceptance that there is a tension, to put it mildly, between the provisions of the Refugee Act, 1996, which include the discretion of the Minister to consider refugee applications, and the measure proposed in this amendment. If the Minister does not believe that amendment No. 11 involves an acceptance of the tension I have mentioned, I would like him to explain why amendment No. 11 is to be proposed.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  This matter inevitably creates a great deal of emotion and when one becomes emotional, one suspends one's critical faculties, particularly in political debate. Great sincerity and an extremely high moral tone have been mustered by the Labour Party. I find it somewhat ironic that Senator Ryan should adopt such a tone in the presence of a Minister, Deputy McDowell, who has honed a similar tone over a long period of time.

Acting Chairman:  The same rules apply to Senator Mooney as regards making a Second Stage speech.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  I am not sure if the Senator is insulting me or the Minister.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  I referred to both the Senator and the Minister.

Acting Chairman:  I know it is the pantomime season, but I ask Senators to refrain from the “Oh yes he did, Oh no he didn't” style of debate.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  Perhaps the Minister will clarify if it is true that, as part of the illegal trafficking that has been conducted in Europe and in order to ensure a safe passage for illegal immigrants, traffickers have advised those who wish to enter Ireland and other countries to burn their passports and other documents. If they take the advice, illegal immigrants who are actually economic migrants have a far better chance of claiming and being given asylum. I do not intend to discuss economic migration, as it is a separate [2079]issue. I am trying to give another dimension to this debate, as the opinions I have heard remind me of the little old lady in the corner shop years ago who was told that it was terrible that she was charged a royalty for playing a transistor radio. It was a myth, as nobody ever found the little old lady in the corner shop.

Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  They found her and they continue to find her today.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  I agree that those who genuinely cannot escape the conflict in the world, as they cannot acquire documentation, should be helped. We should not forget that those who have documentation are advised to burn it.

I would also like to ask the Minister if he thinks it is right that Irish citizens who show up at Dublin Airport to travel with Ryanair cannot leave the country if they do not have specific documentation, such as a passport or a driver's licence.

Acting Chairman:  The Senator's remarks have nothing to do with the amendment before the House.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  Surely we should be thinking about our citizens in this context, as well as worrying about those coming into the State.

Acting Chairman:  The Senator knows that the matter should have been raised on Second Stage.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  I know of an unfortunate couple last week who had booked a flight to go to a football match, but when they arrived at Dublin Airport, they found that they could not travel, despite the fact that they had every document the State could offer.

Acting Chairman:  That has nothing to do with the amendment.

Mr. Mooney: Information on Paschal Canice Mooney  Zoom on Paschal Canice Mooney  I wonder if it is legal and if it should be tolerated in this country.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  Hear, hear.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  Despotic states ensure that their citizens or residents are documented. An argument is sometimes made against identity cards on the grounds of being too authoritarian. Like the previous speaker, I wonder if it is often the case that people do not have documents not because they have been deprived of them by the state they are leaving or because they cannot get hold of any identity documents, but because they do not want documents. They sometimes have false documents for the purpose of getting into another country, rather than for the purpose of getting out of their own country. It is unreal to argue that despotic regimes deprive people of documents, as it is the last thing they do.

[2080]

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I would like to refute the point made by Senator Mansergh. Despotic states control documentation by issuing and withdrawing documents when it suits them. It is perfectly obvious.

Dr. Mansergh: Information on Dr Martin Mansergh  Zoom on Dr Martin Mansergh  We are talking about identity, not travel.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I am interested in the variety of views being expressed. Let us look at Article 26 of the Schengen acquis, of which Ireland is a contracting party, which states:

The Contracting Parties undertake, subject to the obligations arising out of their accession to the Geneva Convention of 28 July 1951 relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967, and in accordance with their constitutional law, to impose penalties on carriers who transport aliens who do not possess the necessary travel documents by air or sea from a third state to their territories.

I should point out, for the information of Senator Ryan, that the word “aliens” is used in the acquis. As I said at the start of this debate, it is not as if the Department of Justice, Equality and Law Reform is thinking up little schemes to suit itself. A Council directive requires Ireland to impose penalties which are proportionate and not less than €3,000 in some respects. I ask Senators to be realistic about this matter – we are living in the real world where we are subject to real influences.

Let us return to what we are being asked to do in this amendment. Senator Ryan has come up with the notion that, somehow, I am casting an unfair responsibility on carriers because, in effect, the Bill will apply to people landing in the State and not to those embarking. I can inform the Senator that no airline in the real world will allow somebody to board a flight if it will be obliged to bring him or her back. The only way airlines can control whether documented or undocumented people are on a flight that lands in Ireland is by checking whether they are documented when the flight takes off. Let us remember that documents do not fly in and out of the windows of aircraft. This Bill, like legislation in other countries, will have the effect of ensuring that carriers will check documentation on the point of embarkation.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  Does it say that in the Bill?

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  One has to bring common sense to bear on these matters.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  In the real world.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  We do that kind of thing in the real world. Common sense requires that carriers do not fly people around Europe or across the Atlantic if there is a chance that they will have to fly them back again at their own expense.

[2081]Mr. P. Burke: Information on Paddy Burke  Zoom on Paddy Burke  There is no common sense in the Four Courts.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  This measure is not extra-territorial in its effect. If airlines want to check people as they arrive into Irish airspace, they are perfectly free to do so. If they want to organise their airlines on the basis that they only check documentation as an aeroplane lands in Dublin, they are perfectly free to do so. The reality, however, is that no airline will conduct its business in this manner, as it is better to check documents at the point of embarkation. I reiterate that the great majority of flights into Ireland come from countries that have signed up to the Dublin Convention, or safe countries such as the United States and Canada. The great majority of people who travel into Ireland by air or on scheduled sea passenger services emanate from safe jurisdictions. People who come to Ireland from third countries are, by and large, people who have entered the intermediate territories with documentation of some kind. If people come to Dublin without documents, it is because, in the vast majority of cases, they have disposed of their documents as they boarded a flight in Amsterdam or wherever. It is impossible to pass through the access points into Ireland without documents – one cannot board, or disembark from, a flight from Lagos to London without a document. If one arrives in Dublin without documents having travelled from Lagos via London, I am sure that one will not have boarded an aeroplane in Lagos undocumented, even if one is escaping persecution.

Let us live in the real world. This measure depends on making it practicable and workable. It is not egregious or wholly different in principle from the measures that the other member states of the European Union have undertaken in accordance with their Schengen obligations. The amendment before us which provides that anyone could circumvent any of these obligations by merely making a claim at a check-in desk anywhere in the world of intention to make a claim for refugee status in Ireland.

Mr. Ryan: Information on Brendan Ryan  Zoom on Brendan Ryan  There is no mention of check-in desks in our amendment.

Acting Chairman:  Senator Ryan has referred to them as much as anyone else.

Mr. M. McDowell: Information on Michael McDowell  Zoom on Michael McDowell  I have already told Senator Ryan that in the real world people will not be checked when an aircraft has landed on the runway at Dublin Airport. The time for airlines to comply with their obligations is at the point of embarkation. That is where they will have make their judgment. If people are given an exemption at that point on the basis of refugee status, it can only be either that the passenger, either getting on to the plane or in transit suddenly goes to the hostess or steward and says that he or she has decided to claim political asylum in Ireland and [2082]that the airline is exempt from any responsibility to check that he or she had documents to enable them to travel on the flight. That is unrealistic.

From the rhetoric of the serried ranks of the left I am flogging a dead horse as far as they are concerned. However, I ask Fine Gael to consult their party as to whether they support the principle of the Bill and then put down amendments and make speeches which reflect what the vast majority of Irish people would consider, I venture to suggest, i.e. that these are reasonable proposals. They should not isolate themselves from public opinion because they will do themselves even more, unnecessary political damage if they maintain a filibuster against the legislation.

Progress reported; Committee to sit again.

Acting Chairman:  When is it proposed to sit again?

Mr. Moylan: Information on Pat Moylan  Zoom on Pat Moylan  It is proposed to sit at 10.30 a.m. tomorrow.


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