Vol. 184 Wednesday, No. 2 14 June 2006

DI´OSPO´ IREACHTAI´ PARLAIMINTE PARLIAMENTARY DEBATES

SEANAD E´ IREANN

TUAIRISC OIFIGIU´ IL—Neamhcheartaithe (OFFICIAL REPORT—Unrevised)

Wednesday, 14 June 2006.

Business of Seanad ………………………………77 Order of Business …………………………………77 Road Traffic Bill 2006: Committee Stage ………………………89 Business of Seanad ………………………………122 Road Traffic Bill 2006: Committee Stage (resumed)……………………122 Health (Repayment Scheme) Bill 2006: Report and Final Stages ………………124 Business of Seanad ………………………………130 European Communities (Amendment) Bill 2006: Second Stage ………………130 Use of Irish Airports: Motion ……………………………155 Road Traffic Bill 2006: Committee Stage (resumed)……………………195 Adjournment Matters: Health Services ………………………………213 University Properties ………………………………215 Schools Building Projects ……………………………218 77 78

SEANAD E´ IREANN minutes and Senators may share time, and the Minister to be called to reply not later than five ———— minutes before the conclusion of Second Stage; and No. 27, motion 21, will be taken from 5 p.m. De´ Ce´adaoin, 14 Meitheamh 2006. until 7 p.m. There will be a sos from 1.30 p.m. Wednesday, 14 June 2006. until 2.30 p.m.

———— Mr. B. Hayes: Later today, the Irish Nurses Organisation will again protest on the streets of Chuaigh an Cathaoirleach i gceannas ar Dublin with regard to the conditions and salaries 10.30 a.m. of its members. Many thousands of nurses are flabbergasted that, at a time when they have been ———— asked to work so hard within the acute hospital system, many senior and middle managers within Paidir. the Health Service Executive, HSE, have Prayer. awarded themselves such a massive increase in salary, pay and conditions. There must be a sense ———— of perspective in this regard. The chief executive of the HSE has stated that Business of Seanad. his priority on assuming the job was to build up An Cathaoirleach: I have notice from Senator capacity within the community care services. Kitt that, on the motion for the Adjournment of However, I have discovered that at present, there the House today, he proposes to raise the follow- are seven fewer public health nurses in Dublin ing matter: than was the case in 2001. This is despite the The need for the Ta´naiste and Minister for massive growth in population in the greater Health and Children to clarify whether Dublin area and the greater pressure which has additional funding for disability services will be been placed on postnatal care services and on made in separate allocations to counties many existing schemes catering for the elderly. It Galway, Mayo and Roscommon, and not on a is horrendous that, at a time when the delivery of 3:2:1 basis. quality community care is expected, HSE execu- tives appear to be more concerned with paying I have also received notice from Senator Ulick themselves fat salaries than with delivering the Burke of the following matter: kind of results Members expected when the The need for the Minister for Education and Government decided to introduce radical Science to insist on the retention of the UCD reforms, such as removing politicians from health research farm at Lyons Estate, Straffan, boards and similar measures. County Kildare. Members should debate the manner in which the health service is being administered and gov- I have also received notice from Senator erned with the Ta´naiste and Minister for Health O’Meara of the following matter: and Children before the summer recess, in order The need for the Minister for Education and to bring some accountability to the system and to Science to advance the building programme for ensure value for money and that those people Nenagh vocational school beyond phase 1, as who are working hard will receive their this building has not been upgraded since it was deserved rewards. built in 1970. Mr. O’Toole: Much of Senator Brian Hayes’s I regard the matters raised by the Senators as contribution found resonance with me. I look for- suitable for discussion on the Adjournment and ward to his less inhibited support of the next they will be taken at the conclusion of business. benchmarking award for nurses.

Order of Business. Mr. B. Hayes: They are well able to represent Ms O’Rourke: The Order of Business is Nos. 1 themselves. to 3, inclusive, and No. 27, motion 21. No. 1, the Road Traffic Bill 2006 — Committee Stage, is to Mr. O’Toole: Senator Brian Hayes made some be taken on the conclusion of the Order of Busi- serious points with which I agree. ness until 1.30 p.m.; No. 2, Health (Repayment The issue raised yesterday by Senator Minihan Scheme) Bill 2006 — Report Stage, is to be taken regarding the leaving certificate mathematics at 2.30 p.m., to conclude not later than 3.30 p.m.; paper is a good example of how change should No. 3, European Communities (Amendment) Bill not be managed. It is clear, given the concerns 2006 — Second Stage, is to be taken at 3.30 p.m. raised by third level institutions, that the math- until 5 p.m., to resume at 7.15 p.m. and to con- ematics paper requires change. However, permit- clude not later than 8.30 p.m., with contributions ting pupils and students to walk into an examin- of spokespersons not to exceed 12 minutes and ation only to find a completely reorganised and those of other Senators not to exceed eight re-formatted paper, with a completely new 79 Order of 14 June 2006. Business 80

[Mr. O’Toole.] At the risk of sounding like a stuck record, I approach is the incorrect way to manage change. ask the Leader again to let us know when the This issue has created trauma for pupils, is unfair Minister for Justice, Equality and Law Reform is to teachers and creates worry for parents. likely to publish his proposals on a press council Although the Minister would state that this is a and media freedom. I would also like to know question for the State Examinations Commission, about the publication of a new set of regulations I ask the Leader to raise it with her. There is pol- on cre`ches. itical responsibility in this regard and change should not be managed in this fashion. The Labhra´sO´ Murchu´ : In recent days we heard House should be informed as to how this could of the momentous decision of the Irish Christian be dealt with in future. If change is required, Brothers to withdraw from education and to hand people must be aware that it will take place to be their schools over to a trust for the future. This is able to prepare for it and deal with it. after 200 years of dedicated service to the Irish I wish to raise an issue concerning the Leader’s nation providing Irish education for Irish children own constituency. I can assure the House that at a time when that was not available, particularly had a bog fire taken place in County Wicklow, it for those who could not afford it. They gave us a would have taken over the national media for the sense of self-esteem at a time when the country past week. A serious and risky event occurred in needed it, they prepared us for careers and made County Longford last week, namely, a bog fire it possible for us to build up the new State. which ran riot for a number of days. It was Most of the staff of the early Civil Service were extremely serious and necessitated the movement educated by the Irish Christian Brothers. They of livestock. Moreover, people were obliged to were central to the promotion of Irish games and move from their houses, property was damaged culture. Nobody could express fully the gratitude and trees were cut to create firebreaks. I seek and appreciation we owe to the Christian Bro- reassurances that this cannot happen again, as thers. I raise this issue because I hope the State lives could be at risk. will not allow this period to pass without Apparently, other locations handle such out- acknowledging what has happened appropriately and generously. Future generations and history breaks better. My understanding is that in places will not thank us if we do not avail of this oppor- such as Laois and Offaly, a fireman is assigned to tunity to show our gratitude for how the Christian each bog to ensure that bog fires are treated and Brothers helped us to get up from our knees and dealt with an early stage. However, the problem bring us to our current position. in the Longford area was caused by cutbacks, which meant that a similar approach was not Mr. Finucane: Last week the Joint Committee taken and no defence mechanisms were in place. on Communications, Marine and Natural This is one of those issues in rural Ireland which Resources presented a comprehensive document is simply ignored by the establishment. It is a on energy, the first of its kind produced. It took serious issue which could cost lives in future. I a considerable period of time and the committee seek reassurances that it cannot happen any- met all the people involved in energy over 18 where in the boglands, which extend throughout days. That document is extremely important. the midlands. Energy is the most important issue we will have to deal with in the near future. Over 90% of our Ms O’Meara: I ask the Leader to arrange a energy comes from fossil fuel, a volatile resource. debate as soon as possible on what appears to be The document includes components on wind the reorganisation of the health services in the energy, which we want to increase to 21%. north-east region. A report has been done and is Despite the regulator’s reassurance that we will being launched today by the HSE, amid reports achieve our objective of having 13% of our elec- that a new hospital is to be built. While what is tricity derived from renewable sources by 2007- happening in the north east is primarily of con- 08, on the ground I found many impediments to cern to that region, issues on how the HSE organ- wind energy promoters. I am not sure we have ises and delivers services arise in other parts of our act together. Will the Leader arrange for the the country. It is important we have this debate Minister to have a comprehensive debate in this and many Members share my concern that since House on that report? the abolition of the health boards, and despite the establishment of the so-called regional fora, there Dr. M. Hayes: The House would welcome the is no democratic accountability in the delivery of news that agreement has been reached on what the health services. was always a contentious Orange march in north Belfast. It might be the source of a debate for us Mr. B. Hayes: Hear, hear. in autumn. This is a hopeful development in that it was brokered by local people, such as council- Ms O’Meara: It is difficult for public represen- lors, political parties, clergy, the loyal orders and tatives at every level to get answers and infor- residents. Linked with the meeting between mation and to fully represent the concerns and Archbishop Sea´n Brady and representatives of needs of their constituents. the orders, it is a welcome sign that people on the 81 Order of 14 June 2006. Business 82 ground are beginning to talk and listen to each and would allow Senators on all sides of the other and understand each other’s point of view. House to make a contribution. That can only be hopeful. Mr. U. Burke: A meeting is taking place across Mr. Norris: I support Senator Maurice Hayes the road on the future development of health because the marching season is often fraught with services in the north east. This was triggered by tension, particularly for the minority community the tragedy when a 75 year old man bled to death in Northern Ireland, and it shows maturity that in Monaghan General Hospital last year. We they are talking to each other and that these con- have had a review and a report on that review by tentious marches are being agreed. That is the Teamwork management consultants. It is daft in way the community should go. Would the Leader the extreme to think that another consultants’ request information from the Minister for review and report on the health services in any Communications, Marine and Natural Resources part of the country was necessary. I support about a serious subject that was brought to my Senator O’Meara and Senator Brian Hayes on attention by listening to RTE Radio 1, when Mr. the urgent need for the Ta´naiste and Minister for Derek Davis pointed out that we passed legis- Health and Children to come to this House and lation in both Houses governing safety in sailing debate openly whether she is in control of the and motor boats and providing for further devel- health service in this country anymore. This is opments by ministerial regulation? stage one of the reintroduction of the Hanly Although prepared, these regulations have not report dressed up in different clothes. been signed. They would include a requirement to have at least a level 2 motor-boat certificate. Mr. Norris: And a good thing too. One does not need a certificate of competence or a licence to drive a boat. Some of them are Mr. U. Burke: That is Senator Norris’s opinion. dangerous and can go at 240 km/h. We have had A Chathaoirligh, I seek protection from such a series of tragedies over the last couple of years interruptions. with people using jet-skis, which can be danger- ous. There is no regulation and drivers do not An Cathaoirleach: Allow Senator Burke to even need insurance. If this House passes legis- speak without interruption please. lation and the Minister fails to sign regulations, putting citizens’ lives in danger, we are entitled to Mr. Norris: The Senator’s concerns are par- an explanation. ochial, he does not care a damn about the health service. Mr. Minihan: Senator Norris is obviously going sailing with Senator O’Toole. Mr. U. Burke: This is a very serious situation. It may be a case of the HSE chief executive, Pro- Mr. Mooney: At the risk of incurring the wrath fessor Drumm, introducing the provisions of the of the Chair, the issue riveting the nation is Hanly report by other means and it requires whether any of the Bloomsday ladies in the debate urgently. What will be the Ta´naiste’s input photograph that was in the national media this into or direction on this? week caught Senator Norris. There is growing I support Senator Finucane on the urgent need concern among people west of the Shannon that for a debate on energy policy. I have serious res- there is another anti-west lobby on decisions on ervations on the part played by the energy regu- the re-opening of the western rail corridor. A lator in implementing what is supposed to be report was published some weeks ago by the Government policy. Throughout the countryside Western Development Commission, the con- many individuals and co-operative groups have clusion of which asked why dual carriageways wind energy projects ready to begin but they are stop approximately where the Shannon separates being denied access to the national grid because east and west and why people in the west should there is a preservation order on the system. not have the same infrastructure and develop- Energy prices affect everyone. Why must we rely ment of services as those in the east. I link that so much on imported fuel when we could gener- to a perception that there has been a reduction in ate our own electricity through wind energy at spending in the BMW region under the national less than half the current cost? development plan and from EU funding, which continues until 2012 at least. Mr. Kitt: I welcome the proposal for a debate I accept that the Government, particularly the on health services. I recently met representatives Minister for Finance, has responded to vigorously of the Brothers of Charity and the Galway to this perception in recent weeks. I would like Association on funding in the area of disability. the Leader to consider a debate, if not before the It is outrageous that the system is the same as that recess then after, possibly in Government time as under the health board whereby in the western a motion that would allow this House and the region, for every euro Roscommon receives Government to clarify the spend of money in the Mayo receives two and Galway three. It is based west on infrastructural development. It might on a mathematical formula rather than an assess- help lay the myths that are growing up about this ment of needs. A more realistic system should be 83 Order of 14 June 2006. Business 84

[Mr. Kitt.] This House should indicate that we welcome this put in place for the voluntary and disability co-operation. sectors. Politicians around the country can sometimes I was told at the meeting that money is badly feel helpless when it comes to participation in needed in the areas of occupational therapy, decision making. Many decisions are now made speech therapy and physiotherapy. These organ- by people within the health service who are isations have the personnel but need funding to answerable to no one. If we are to have a proper allow these therapies to be put in place in the health system the people who make decisions like western region. handing out medical cards, allocating beds and moving patients up waiting lists must be account- Mr. Quinn: Some three years ago the Irish able and answerable. If politicians behaved in Human Rights Commission wrote to the Govern- such a way a tribunal would most probably result. ment requesting that it be accountable directly to The vast majority of people in the health service the Houses of the Oireachtas. The Government work hard and fulfil an admirable vocation but did not oppose this but sought to consider the some abuse the system, seeming to consider it suggestion. Can the Leader find out the position one big pay cheque for themselves. We should on what seems to me a valid and sensible sugges- lead the way in ensuring that accountability be tion? Three years is sufficient time to formulate introduced. I ask the Leader to invite Professor a response. Drumm to address this House and outline what A British newspaper report this morning indi- he intends to do. cated it is possible to buy a strain of smallpox on the Internet with total freedom. An initial release An Cathaoirleach: I do not think that will be would affect ten people and could spread to 2.2 possible. million people in 180 days. I do not know what Mr. J. Walsh: I support the calls from Senator the answer to this is but it seems ideal for a ter- ´ rorist who seeks to use the Internet to secretly O Murchu´ and Senator Glynn for appropriate and efficiently create horror. Smallpox was eradi- State recognition of the contribution made by the cated many years ago but it is possible for terror- Christian Brothers to the development of Irish society over the past two centuries. Many gener- ist organisations to access strains of it. I do not ations of Irish boys would not have had access to know whose responsibility a response to this an education but for the contribution and self- might be but we should be aware of the situation sacrifice of many within the order. It imbued a so that we can take steps to address it. love of our island, of being Irish and having pride in ourselves. It also gave us a love of our native Mr. Glynn: I support Senator O’Toole’s com- sports, hurling and football, and gra´ for an teanga ments relating to the bogs of Westmeath and Gaeilge ata´ sa chinn. It is very appropriate that Longford. It took millions of years to create them the order be recognised at this stage, as it is no and mere hours to destroy them. This is not the longer actively involved in the education system. first time this has happened. In my own locality I support the comments made with regard to people lost their entire crop of turf to bog fires the need for wind energy. I previously called in and immeasurable harm has been done to wildlife this House for national guidelines for a national so people should be very careful. This seems to wind energy strategy to emanate have happened often in the past but I cannot say 11 o’clock from the relevant Department. My what should be done about it. understanding is that the matter is On the role of the Christian Brothers in Irish now being addressed. I ask the Leader to arrange education, I am proud to be a past pupil of the for the Minister for the Environment, Heritage Christian Brothers school in Mullingar. We are and Local Government to attend at an early stage talking about the rule, not the exception, and I to discuss the content of those guidelines. Senator have fond memories of the Christian Brothers Quinn and others have championed the need for there and around the country. independent energy sources in order to meet our future obligations. An Cathaoirleach: Has the Senator a question? Mr. Cummins: The gaming and gambling Mr. Glynn: Yes. I agree that the Leader should industry has changed completely in the past request the Taoiseach and Government to mark number of years with the onset of on-line betting. in some way the role the Christian Brothers have Ireland is one of few countries which has no legis- played in the education of the people of Ireland lation in place to regulate the industry. If recent at a time when there was no hope of ordinary newspaper articles are correct, on-line betting is boys, especially those from deprived areas, causing major hardship in many households receiving an education. throughout the country. Is it the intention of the Minister for Justice, Mr. Feighan: I welcome Senator Maurice Equality and Law Reform to introduce legislation Hayes’s announcement that there was agreement to regulate the whole area of on-line betting? He on the Orange Order marches in north Belfast. has mentioned that he intends to plug the loop- 85 Order of 14 June 2006. Business 86 hole relating to casinos in separate legislation Mr. McHugh: We must act and keep our word. which will be introduced. This area deserves the People within the health service who are dis- Minister’s urgent attention because of the hard- cussing the issues in a professional way must put ship which has been caused. There should be their money where their mouths are, with the aid regulation. I urge the Minister to come to this of this Government. It is important we fund the House and explain if or when such regulation will bricks and mortar and afford people the dignity be introduced. they deserve.

Mr. Browne: I agree with Senator O´ Murchu´ Senators: Hear, hear. on the role of the Christian Brothers in schools. I was amazed when I recently learned that almost Ms O’Rourke: Senator Brian Hayes raised the 3,000 primary schools in the country are not in matter of the planned march by nurses today. He the ownership of the State. They are mainly in stated there are fewer nurses in the community the ownership of different religious orders. They now than in the past. account for approximately 90% of schools, which is a significant proportion. We are vulnerable in Mr. B. Hayes: I referred to public health one way, as when religious orders leave edu- nurses. cation, primary schools could be closed down and sold if the orders suddenly began to sell their Ms O’Rourke: Yes. He asked for a debate on assets. the administration and delivery of health services. Senator O’Toole discussed the need for man- Mr. B. Hayes: It is happening. agement of change in the second-level school cur- riculum. He pointed this out with regard to how Mr. Browne: We need a debate on the transfer the higher-level maths papers have gone in the into trusts of school properties. The State would leaving certificate exams. The Senator correctly have paid for these over time. While the role of stated that the Minister will advise that the State religious orders must be acknowledged, the State Examinations Commission will decide on the would have paid for extensions to schools, etc. issue, but he nevertheless felt it should be more hands-on, and that this kind of curriculum change Mr. B. Hayes: Hear, hear. is not being managed. A curriculum change in Mr. Browne: We need a wider debate on the any subject is significant for any school. role of the church in schools in light of the multid- The Senator commented on the Longford and enominational country in which we live. We Westmeath bog fire. In Laois-Offaly a fire officer should examine how we can cope with new is specifically appointed to monitor bogs. There pressures. was a strong wind paired with the significant heat last Thursday and Friday, which fanned the fire Mr. McHugh: I add my voice to the demand in question. I take the Senator’s point. The inci- for an urgent debate on health services. It is not dent was highlighted well, and Ciara´n Mullooly until one is immersed in a scenario of a crowded reported each evening on it. That is not the point. accident and emergency department, or crowded It is a significant rural issue. Many people in corridors, that one becomes fully aware and Dublin do not know what a bog is, let alone speak appreciative of the problems which exist. We ofafireonit. have spoken of trolleys and patients on trolleys, Senator O’Meara spoke of the delivery of but because so many people speak of it the whole hospital services as we are to be told today of time, the impact is not realised until a situation what will happen in the north-east region of the occurs similar to what happened last night in HSE. If we want change and better services, the Letterkenny General Hospital. country will have to be divided and examined. My mother was at the accident and emergency The Senator wants the issue out in the open, department there last night, and a crash victim which is an admirable suggestion. was brought in. The staff excelled in preparing The Senator asked when the Minister for for the arrival, but the victim unfortunately Justice, Equality and Law Reform will bring for- passed away. After the incident, relatives of the ward his ideas on a press council. He may have deceased arrived and were mourning the loss been ready to run with the idea but for other amid other patients in the corridor. They were matters intruding. With regard to the regulation not afforded the dignity to mourn the loss. There for cre`ches, I have spoken to the Minister of State was mayhem on the corridors, and the dignity with responsibility for children, Deputy Brian which people should be afforded at that time was Lenihan, and he stated he would like to come not given because of the cramped and crowded before the Seanad to speak on the matter. I will conditions. raise the matter with him again. We should stop the talk and jargon about Senator O´ Murchu´ praised the role of the investing in primary care and the roll-out of infra- Christian Brothers and indicated that we should structure and development. mark it in some way. Senator Finucane men- tioned the document on energy. We all received Mr. Finucane: Hear, hear. it and it looks like a very impressive document. 87 Order of 14 June 2006. Business 88

[Ms O’Rourke.] issue and take responsibility to hear from the The Senator stated that the appropriate Minister commission and work through the document. should be invited in to debate the detail of the Easy access to lethal drugs on the Internet must report. be investigated. Senator Glynn raised the issues Senator Maurice Hayes mentioned that com- of the danger of bogs and the role the Christian munities had reached agreement on the conten- Brothers played in education. He asked me to tious Orange march in Belfast. That is ground- request the Taoiseach to mark their role in Irish breaking in itself, and it is a welcome sign. education on the announcement that they will Senator Norris brought up the issue of legis- move out of it. lation on the safety of sailing boats, and minis- Senator Feighan welcomed the agreement on terial orders arising from legislation waiting to be the marches in Belfast. He also requested that signed. This raises a much bigger question. Much Professor Drumm come the House. I imagine the legislation depends on Ministers signing statutory man has enough on his mind and there would be orders. They are often in the Oireachtas Library no chance of him coming here. having been signed. The Senator indicated such orders are not signed and are urgent. An Cathaoirleach: I believe that has to do with Senator Mooney mentioned a debate on the health committees. BMW region. We had such a debate two weeks ago with the Minister for Finance, Deputy Ms O’Rourke: The Cathaoirleach is correct. Cowen. The Senator would have been busy with Senator Jim Walsh raised the role of the his European duties. We commented on the west- Christian Brothers in education. He also ern rail corridor yesterday, with the issue raised requested a debate on energy. Senator Cummins by Senator Kitt. We discussed how the so-called raised the issue of gaming and gambling. He has smart media are trying to run down the whole been interested in this for some time. I mean concept, as if the trains would stop at Athlone interested in having it debated. and that would be the end of the journey west. I have previously stated that when we went into Mr. B. Hayes: He is interested in the other Government in 1987, there was much pressure thing too. from the Department of Finance for cuts to be made. One of the cuts suggested was that all Mr. Browne: A Freudian slip. trains west would terminate in Athlone. I was delighted to be there. I wondered whether they Mr. Dardis: An each way bet. would stop in the middle of the Shannon or cross it. As one can imagine, that proposal got Ms O’Rourke: He asked when the Minister for nowhere. Justice, Equality and Law Reform will regulate on-line betting, which causes a great deal of Mr. Dardis: They could not be turned around. domestic trouble. I am sure people waste their money. I believe horses are a cod. I go to one Ms O’Rourke: Exactly, where would they be race meeting in Kilbeggan a year, and I pick the turned? horses by their nice names. Sometimes they win. Senator Ulick Burke raised the issue of the Senator Browne raised the issue that school delivery of hospital services throughout the coun- sites are not in State hands and the expense try. The Ta´naiste is in control of the health involved. Many orders put them in trusts from service. Thankfully, she has a good working where they can be accessed. He also mentioned relationship with Professor Brendan Drumm. The the role of the church in schools. Boards of man- Senator also wanted a debate on energy and the agement may have a lay chairperson. That is the role of the regulator. He stated we appear to have case in many schools and they do an extremely a preservation order on the national grid and one good job. I agree the multidenominational cannot tap into it. We will endeavour to get the primary education sector does great work. Minister for Communications, Marine and Senator McHugh raised the issue of the deliv- Natural Resources, Deputy Noel Dempsey, to the ery of health services. He told a tale of people House to debate those matters. having to express their grief and comfort one Senator Kitt raised the matter of funding for another in crowded corridors and stated that disability services. He stated that in the western surely it is a small matter for hospitals to provide region a mathematical formula is still used, partic- a bereavement room where people could gather ularly in counties Galway and Mayo, and, to a and talk over what happened. It is a fair point. lesser degree, in County Roscommon. Senator Some hospitals do so but the disparity in the Kitt suggests it should be based on the need for delivery of services is very significant. I thank the moneys for physical and speech therapies. Senator for raising the matter. Regarding Senator Quinn’s point, the Human Rights Commission wrote to all of us, enclosing Order of Business agreed to. documentation and stating it wants to be respon- sible to the Houses of the Oireachtas, which I Sitting suspended at 11.15 a.m. and resumed at thought admirable. I intended to examine that 11.25 a.m. 89 Road Traffic Bill 2006: 14 June 2006. Committee Stage 90

Road Traffic Bill 2006: Committee Stage. ance of his or her duties”. It is for this reason that drivers of essential service vehicles have limited Sections 1 and 2 agreed to. exemption from the prohibition on holding a mobile phone while driving. The exemption is SECTION 3. strictly controlled and only permits a driver to An Cathaoirleach: Amendments Nos. 1, 6, 11, hold a mobile phone when he or she is acting in 12, 15, 16, 19, 23, 24, 27, 29, 37, 41, 45, 46, 49, 53, the course of his or her duties. Amendment No. 61, 68, 87, 104 to 108, inclusive, and 111 are cog- 2 proposes to remove this condition and if we nate and all may be discussed together by were to accept it, would result in a general pro- agreement. hibition affecting drivers of Garda and emer- gency service vehicles. I disagree with this. The Mr. P. Burke: I move amendment No. 1: subsection, as drafted, provides the right balance between ensuring safe and responsible driving In page 3, subsection (2), line 26, to delete and permitting a driver of an emergency service “the” and substitute “An”. vehicle to use a hand-held mobile phone in cer- I welcome the Minister of State to the House. tain circumstances, if so warranted. These are all technical amendments which pro- Amendment No. 9 provides that using a hand- pose to substitute “An Garda Sı´ocha´na” for “the held mobile phone to call the Garda or an emer- Garda Sı´ocha´na”. “An Garda Sı´ocha´na” is used gency service is a defence for a person charged in some cases while “the Garda Sı´ocha´na” is used with holding a hand-held mobile phone. The Bill in others. There is much confusion over this and recognises that there may be certain emergency the purpose of the amendments is to clear up the circumstances in which a driver needs to use a situation and ensure consistency. hand-held mobile phone while driving his or her vehicle. In short, it is for such circumstances that Minister of State at the Department of Trans- what may be termed a “genuine emergency port (Mr. Gallagher): We are committed to the defence provision” is included in the Bill. If one Irish language on both sides of the House and is apprehended in circumstances that are not want to use it as much as possible. However, in deemed to be an emergency, but where one these circumstances the English version, involv- believes they are, it is a matter for the court to ing the use of the word “the”, is used, as is the determine the merits of the genuine emergency normal practice. “The Garda Sı´ocha´na” is used in defence. I consider this approach to be fair, all Bills passed in both Houses. This has been the reasonable, balanced and pragmatic. I suggest the standard practice since 1961 and was not intro- Senator consider withdrawing his amendments. duced by me. The Bill will be available in Irish as His proposals would not result in the strong, clear soon as it is enacted. The Irish version will, of legislation we propose to introduce. course, use “An Garda Sı´ocha´na” rather than “the Garda Sı´ocha´na”. Amendment, by leave, withdrawn.

Amendment, by leave, withdrawn. Mr. P. Burke: I move amendment No. 3: In page 4, subsection (4), lines 3 to 5, to An Cathaoirleach: Amendments Nos. 2 and 9 delete “, to avoid the impairment or inter- are related and may be discussed together by ference with the driving capacity or capabilities agreement. of the driver of a mechanically propelled vehicle,”. Mr. P. Burke: I move amendment No. 2: Section 3(4) states, “The Minister may, to avoid In page 3, subsection (2), lines 29 and 30, to the impairment or interference with the driving delete “and holding a mobile phone in relation capacity or capabilities of the driver of a mechan- to the performance of his or her duties”. ically propelled vehicle, make regulations in These amendments concern the use of hand-held relation to the restriction or prohibition in mech- devices by Garda, ambulance and fire service per- anically propelled vehicles in public places [of the sonnel. These are generally not the people to use of certain listed equipment]”. This could whom we refer when talking about giving penalty leave a loophole in that the Minister is using the points for using mobile phones or other devices word “avoid”. There is no need for the legislation when driving a motor-car. There is no need to to state this and we do not legislate in that refer to such personnel in the Bill. They may need fashion. The loophole could be exploited in the to have such devices in their hands during emerg- courts, as has often occurred in respect of other encies and they are not the people we are legislation, because the State is listing a reason in targeting. the Bill. I hope the Minister of State will accept my amendment. Mr. Gallagher: There could be operational cir- cumstances in which a driver of a Garda car, Mr. Gallagher: Perhaps there is some ambi- ambulance or fire brigade vehicle would need to guity in the thinking but, as far as I am concerned, use a hand-held mobile phone “in the perform- the proposed section is very black and white. Sub- 91 Road Traffic Bill 2006: 14 June 2006. Committee Stage 92

[Mr. Gallagher.] amendments Nos. 4 and 5. Subsection (5) gives section (4) recognises the need to have a broad, wide discretion to the Minister regarding the flexible legislative framework to regulate in- scope of regulations to restrict or prohibit in- vehicle technologies for providing information, vehicle communication information and enter- communication or entertainment for the purpose tainment technologies. Essentially, it allows for of restricting or preventing driver distraction regulations to be vehicle-specific or case-specific. associated with the use of technologies by both This type of provision is common in regard to drivers and passengers. The broad view is that regulations making powers under the Road mobile phones comprise the only in-vehicle tech- Traffic Acts. I am satisfied that the use of “cases” nology but there is an exhaustive list with which and “vehicles” in the subsection is appropriate. I want to deal. The Parliamentary Counsel has advised me that Given the scale of innovation in the technology this is in conformity. sector, it is important to give the Minister power to prohibit the inappropriate and irresponsible Amendment, by leave, withdrawn. use of in-vehicle technology without generating the need to introduce primary legislation on each Amendments Nos. 5 and 6 not moved. occasion he or she wishes to do so. In giving such powers to the Minister, it is usual for the enabling Acting Chairman: Amendment No. 7 is in the provisions to spell out the parameters and pur- name of Senator Burke. Amendments Nos. 8, 10, pose of the regulatory powers. Section 4 specifies 20, 21, 28, 33, 42, 58, 62 to 65, inclusive, 69, 84, that regulations to control the use of in-vehicle 86, 108, 113, 116 and 117 to 120, inclusive, are technologies by occupants of vehicles must be for technical or drafting amendments and may be dis- the purpose of avoiding the impairment of, or cussed together. Is that agreed? Agreed. interference with, the driving capacity of the driver of the vehicle. Mr. P. Burke: I move amendment No. 7: If the Senator’s amendment were to be In page 4, subsection (7)(b), line 26, to delete accepted, it would give the Minister broad power “in” and substitute “in,”. to make regulations concerning the technologies in a way he may desire but he would not be These are all technical amendments on which I required to base them on furthering driver or would like to hear the Minister’s response. road safety objectives. An open-ended approach Mr. Gallagher: Senator Burke has proposed to the making of regulations of this kind is these amendments which relate either to commas unusual and I have received legal advice that this or hyphenation in the Bill. I am again advised by could be ultra vires. If the amendment were the Parliamentary Counsel that the insertion of accepted, listening to a radio and using navi- punctuation such as commas in the Bill is a tech- gational equipment that can be programmed nical drafting matter and therefore I cannot prior to setting off on one’s journey and which accept the amendments. can give oral directions could be banned by the Minister. However, the purpose of this type of Amendment, by leave, withdrawn. equipment is to make roads safer and assist driv- ers. I ask the Senator to consider this and realise Amendments Nos. 8 to 10, inclusive, not his amendment would allow an open-ended moved. approach in the making of regulations, which we want to avoid. Question proposed: “That section 3 stand part of the Bill.” Amendment, by leave, withdrawn. Mr. McDowell: A number of issues arise in the Acting Chairman (Mr. Dardis): Amendment context of the section, one of which has been No. 4 is in the name of Senator Burke. Amend- touched on. I am a little concerned about subsec- ments Nos. 4, 5, 75, 77, 78, 81 and 85 are technical tion (4), which in effect allows the Minister make or drafting amendments and may be discussed regulations providing for the prohibition of cer- together. tain devices. In effect, this subsection allows the Minister to create an offence and I wonder Mr. P. Burke: I move amendment No. 4: whether legally that is the right approach. In page 4, subsection (5), line 14, to delete The argument over the past year and a half or “cases” and substitute “case”. so was that we needed explicit legislation to enable us to prohibit the use of mobile phones. It These are technical amendments on which I appears the same argument might apply to this would like to hear the Minister’s response. subsection in that if we are to explicitly prohibit particular types of in-car communication devices, Mr. Gallagher: I am advised by the Parliamen- we must explicitly spell that out in the Bill and tary Counsel that he is satisfied that the correct also the penalties that will apply. What we have use of singular or plural, or a mixture of both, is said is that the Minister may do that by way of in conformity. I refer to an example relating to regulation should he or she choose to do so at 93 Road Traffic Bill 2006: 14 June 2006. Committee Stage 94 some stage in the future. However, I wonder by people using mobile phones or other devices whether we need to specifically prohibit it in this to ensure they cannot exceed the limit. Bill rather than give the Minister power to pro- hibit it at some stage in the future by way of Mr. Gallagher: Section 3(4) empowers the regulations. Minister to make regulations to restrict or pro- While I am on this issue, will the Minister of hibit the use of mobile phones, other communi- State specifically address the issue of whether cations equipment, and information and enter- that subsection could or will be used to prohibit tainment equipment by occupants of motor the use of car kits in the future. It appears it could vehicles. This provision is important because it be used in that fashion and I wonder whether it recognises the need to have a broad, flexible is the Minister’s intention to provide that by way legislative framework to regulate in-vehicle of regulations at some stage in the future. technologies and information, communication or indeed entertainment equipment for the purpose Mr. Dooley: I welcome what the Minister has of restricting or preventing driver distraction set out in the Bill regarding the issue of in-car associated with the use of such technologies by entertainment and other modern technologies. occupants of motor vehicles. Obviously, it is all about driver behaviour and When we consider the scale and pace of inno- ensuring drivers concentrate on the management vation in these technologies, the assigning of of the vehicle and on the road. regulation-making powers to the Minister is pru- Something which is not in this section but to dent and sensible. Technology is advancing so which the Minister of State might give consider- quickly it is important that we should be able to ation at a later stage, is the issue of scenic routes, act immediately, if necessary. If a piece of tech- which are now defined through the Department nology is introduced which might have an effect of the Environment, Heritage and Local Govern- or impair the driver and lead to dangers or dis- ment, or more particularly through the local auth- tractions, it is important the Minister should have that power. ority, in terms of their development plans. They are creating and identifying routes as scenic Scenic routes are a distraction. I would like the routes. hedges trimmed in some of the most beautiful scenic routes in the country but I am told that can The designation of scenic routes and the belief be a distraction for drivers. That is something I that they can be used for something other than will discuss with my colleague in the Department that for which they are designed, namely, as of the Environment, Heritage and Local Govern- thoroughfares to get from A to B, has the capa- ment. There should be ample notices in advance city to lead to accidents due to people slowing of such scenic sites and lay-bys whereby those down in particular scenic spots, not concentrating who want to view our scenery, and we want them on the road and, more particularly, looking at the to do that, would be able to do so without visual amenity in the area. On another level, it is endangering their own safety or the safety of creating major problems in terms of people get- others. ting planning permission in particular areas. That aspect should be addressed by the Minister of Mr. McDowell: Perhaps I did not make myself State’s Department in terms of road safety. sufficiently clear. I was looking to explore the dif- We have many scenic routes in County Clare ference in approach between subsection (1) and and the Department must examine, in conjunc- subsection (4). Subsection (1) provides for a spec- tion with the local authorities, the possibility of ific offence of holding a mobile phone and a later providing more lay-bys in particular areas to subsection outlines the penalty, but subsection (4) accommodate tourists and others who wish to is simply enabling. Why is it being done in an appreciate the scenic value of particular areas. enabling way? Why does he not create a general There is an exercise between the Minister’s offence of using an in-car communications device Department and the Department of the Envir- in such a manner as to be dangerous, rather than onment, Heritage and Local Government to saying regulations may be made at some stage in move away from the principle of all stretches of the future to deal with these other issues? road being seen as some type of scenic amenity. The reason I am pursuing this now is that we It is more important that they be seen as were told by the Minister of State’s predecessor, thoroughfares and try to discourage people from Deputy Callely, that it was impossible to enforce gaping over ditches in a way that has an impact an offence of holding a mobile telephone simplic- on road safety. iter — in other words, if it was not otherwise dangerous — for the last 18 months to two years Mr. P. Burke: Senator McDowell raised an because we needed to create the specific offence, important question in regard to spelling out the as we are now doing. That is fine. It seems to me various devices and new technologies that are the same argument applies to the offences that coming on stream. Many people now use their are obviously contemplated in subsection (4). cars as an office because they spend so much time Surely we need to explicitly create that offence in them. Perhaps the Minister of State should or those offences if we believe they are to be consider putting a speed restriction on cars driven enforceable. In making the regulations, is the 95 Road Traffic Bill 2006: 14 June 2006. Committee Stage 96

[Mr. McDowell.] Nos. 14, 18, 25, 26, 31 and 32 are related and all Minister of State contemplating the possibility of may be discussed together. Is that agreed? prohibiting the use of car kits where the phone Agreed. does not have to be held manually? Mr. P. Burke: I move amendment No. 14: Mr. Gallagher: I apologise in that I omitted to refer to subsection (1) which prohibits the hold- In page 5, subsection (3)(b), line 24, to delete ing of a mobile phone while driving a motor “hours at any time” and substitute “times”. vehicle in a public area. The word “hold” is We want to include “times” in place of “hours at defined in subsection (9) as “holding the phone any time”. That might make matters clearer, by hand or supporting it with another part of the given that the provision as set out at present body”. This prohibition, it is clear, does not apply could give rise to a loophole. A Garda Sı´ocha´na to hands-free mobile phones or two-way radios. superintendent might specify that the gardaı´ are Accordingly, mobile phone use involving blue- conducting business between certain hours. If it tooth technology, where the phone is placed in a was not on the hour or half-hour specified, this cradle, is legal. However, if we find that at some could give rise to a loophole. We are substituting time in the future there is sufficient evidence of “times”, say, from between five o’clock until infringements by drivers arising from phone use, seven o’clock, so that matters are made much then the Minister has the power to act under sub- clearer and a loophole may be avoided at some section (4). stage.

Mr. McDowell: Is it fair to say that subsection Mr. Gallagher: I see where Senator Paddy (4) is simply a back-up plan? Burke is coming from. However, if a Garda inspector, superintendent or someone of higher Mr. Gallagher: It is, absolutely. rank decides there should be mandatory alcohol testing between, say, 17:00 and 19:00 hours, I Mr. McDowell: The initial intention is to pro- believe there is sound reason for providing some hibit the use of mobile phones and the rest could degree of flexibility. If a Garda testing unit is on be done at some stage in the future. The Minister the Castlebar-Westport or the Donegal-Bally- does not have a pocketful of regulations he is shannon road at a time when there is no great ready to implement. flow of traffic, if we stipulate between 17:00 and 19:00 hours, that means the gardaı´ must remain Mr. Gallagher: He does not. there during this time. Perhaps when the part- icular unit is alcohol testing, it should be able to Question put and agreed to. move to another venue, with the approval of course of an inspector or someone of a higher SECTION 4. rank. Our legal advisers say that whatever the merits of Senator Paddy Burke’s proposal, it Amendments Nos. 11 and 12 not moved. would very much tie the hands of the Garda auth- orities and not give them the flexibility they Acting Chairman: Amendment No. 13 is in the require. name of Senator Paddy Burke. Amendments Nos. 13, 17, 22, 30, 36, 50, 71 to 74, inclusive, 79, 80, 82 and 83 are all technical or drafting amend- Mr. Quinn: May I speak on amendment No. 32 ments and may be discussed together. Is that at this point? agreed? Agreed. Acting Chairman: Yes. Mr. P. Burke: I move amendment No. 13: Mr. Quinn: Amendment No. 32 calls for a new In page 5, subsection (2), line 20, after “pow- section to be inserted at page 6, after line 34, ers” to insert “set out”. specifying that a member of the Garda Sı´ocha´na These are technical amendments on which I “who attends the scene of any road accident, may, would like to hear the views of the Minister of and as far as practicable shall, require the driver State. of any vehicle involved in the accident to provide (by exhaling into an apparatus for indicating the Mr. Gallagher: My reply is similar to the earlier presence of alcohol in the breath) a specimen of one involving a number of drafting amendments. his or her breath”. I tabled this amendment on I am advised as regards the substitution and foot of a recent report that surprised me. Accord- deletion of words without any change in the con- ing to that report, there is no legal requirement text that I should not accept these amendments. on the gardaı´ to take a breath test after an acci- dent. The result is that sometimes it happens and Amendment, by leave, withdrawn. at other times it does not, which is quite an unsat- isfactory situation. Perhaps the Minister of State Acting Chairman: Amendment No. 14 is in the will put me right, but my amendment seeks to name of Senator Paddy Burke. Amendments close that gap and to place an obligation on the 97 Road Traffic Bill 2006: 14 June 2006. Committee Stage 98 gardaı´ who attend an accident scene to take Ms White: I thank the Minister of State for his breath tests from any driver involved. comments. However, I believe there would be I put in the words “as far as practicable” to tremendous public support for compulsory testing cover the situation in which it is not always pos- of people at the scene of an accident, especially sible to take the test, for example, where a driver drivers. I understand that it would not be ethical is severely injured and all the focus is on getting to test a person in a life and death situation at the him or her to hospital as soon as possible. That scene of a serious accident, but it should be done type of situation aside, however, everybody will as often as possible rather than on a random agree that the gardaı´ should be required to take basis. The public would like that policy. There breath tests at the scene of every accident. Per- was almost one death per day last year on the haps I have not read the Bill correctly, but it roads. More people were killed on the roads in seems to me there is no onus on the gardaı´ to do the past nine years than in Northern Ireland since that, and that is the reason for the amendment. 1969. I do not know why there is not a bigger hue and cry in here every day about road deaths. Mr. Gallagher: I am responding to amendment The other point I wish to make is about manda- No. 32, which is linked, of course to amendment tory testing for drugs. In the UK, studies found No. 31 tabled by Senator White. Both Senators that 59% of those surveyed had driven a vehicle referred to this matter on Second Stage. I want after smoking cannabis, while 37% to refer to section 4 of the Bill, outlining the pro- 12 o’clock had driven after taking cocaine. I visions on mandatory alcohol testing. Both asked a colleague this morning about Senators propose that the Bill should be further the effects of taking cocaine. Apparently, one amended so that a driver involved in a road feels invincible. We must keep up-to-date with traffic accident shall be required, where possible, other countries and we should put drug testing on or indeed as far as is practicable, to undergo a the same level as alcohol testing in this Bill. mandatory test for alcohol or drugs. The Road Traffic Acts already provide that a member of the Mr. McDowell: I wanted to explore some of Garda Sı´ocha´na may require a person in charge the issues raised by Senator Burke because they of a mechanically-propelled vehicle to provide a are very important, especially the issue of how preliminary specimen where the vehicle is specific the authorisation needs to be in respect involved in a road collision or where a garda con- of time and place. At the moment, there is a siders that a road traffic offence has been com- requirement that specifies an hour and date at mitted or forms the opinion that the person has which a check-point may begin and an hour and consumed alcohol. date at which it may finish. As the Bill currently The purpose of preliminary roadside breath stands, there is no restriction on that so it would testing is to provide the garda with the facility to be possible for a particular inspector to specify determine whether the person in charge of the that an authorisation could run for two or three vehicle has consumed alcohol. The Acts provide weeks, or every Saturday night for the year that a person may be arrested for a drink driving between 12 a.m. and 3 a.m. There is no specific offence without recourse to a preliminary breath requirement that a separate authorisation would test. There may be circumstances, as I referred to need to be issued. If an inspector felt that it was on Second Stage, especially in the context of a reasonable to have a checkpoint close to a pub road accident, where it may not be possible for a every Saturday it seems to me, that as currently member of the Garda to require that a person, formulated, it would be possible for the inspector who may be unconscious or injured, submit a pre- to run off one authorisation to allow that to hap- liminary breath test. In those circumstances, pen. I do not see any restriction on his or her under the Road Traffic Acts, the gardaı´ may capacity to do that. place an obligation on a person to provide a The Bill is also very loose — maybe that is the blood or urine sample in hospital. This applies intention — in defining the place. It actually where an event occurs involving a vehicle which states “place or places”. If there is a concert in results in a someone being injured or a person Croke Park, is it possible for a local inspector to claiming or appearing to be injured, where he or issue an authorisation saying that the Garda may she is admitted to or attends a hospital and where mount checkpoints in the vicinity of Croke Park? a member of the Garda is of the opinion that at Would that extend to Mountjoy Square? How the time of the event the person had consumed precise does it have to be? an intoxicant. An intoxicant can include both I am not a member of the Joint Committee on alcohol or drugs or indeed any combination Transport and those who are have an advantage thereof. Garda discretion as regards the use of over me. The Minister has chosen to introduce a preliminary roadside tests is an integral and parallel system of breath testing in addition to the indeed important element of the enforcement current system. He has not chosen to modify the provisions relating to the laws that apply to drink powers that already exist. He has chosen to add driving. It is my view that the legislation in place on an additional power which can only be exer- is adequate and I hope that the explanation I cised under this authorisation at checkpoints. We have given will satisfy both Senators. The spirit need to know how this will work. It seems clear of what they intend is already incorporated. under this section that individuals who are 99 Road Traffic Bill 2006: 14 June 2006. Committee Stage 100

[Mr. McDowell.] period of time. Does that answer the Senator’s stopped cannot ask the garda for a copy of the question? authorisation. For example, if I am stopped at Artane roundabout, I do not know whether the Mr. McDowell: It does up to a point. I have garda has the power to exercise his powers under not had the benefit of the debate in the Joint section 4. He may be acting under the Road Committee on Transport. I assume there was Traffic Acts and he must therefore have a sus- some reason for trying to limit the time and place. picion that I have taken drink, or he may be act- If that decision was taken, the power in the Bill ing under an authorisation to set up a checkpoint. is very general. The individual being tested has no way of know- I want to get a sense from the Minister of State ing that. In those circumstances, we are open to as to whether he wants the power to be that the possibility that authorisations will be issued general, whether he wants authorisation to be post facto. If someone is stopped on the Artane given by an officer in charge of a Garda district roundabout on a particular evening and tested which would allow checkpoints to be set up with using the powers under that subsection, the garda little limitation. If that is his intention, it would can go back to the Garda station later and get be useful for that to be on the record. an authorisation. If we restrict the power to test randomly — Mr. Gallagher: The authorisation would state that seems to be the intention — we need to be that and it could indicate that authority has been clear how it is restricted and we need to have the given to the garda to carry out a mandatory restrictions enforceable. On the other hand, if we alcohol test at one or more than one location dur- intend that testing should be random, we should ing that period. That would have to be worked not be going about it by creating a different way out. If the Senator could indicate the practicalities of doing things. We should simply change the or the inefficiencies in the system, I would com- existing powers. municate with him on that issue.

Mr. Gallagher: We believe it is very important Mr. McDowell: That is not my intention. I am that gardaı´ have flexibility with the time factor. not trying to pin the Minister of State to specifics. There is nothing in the legislation that states that I am trying to get a sense of what he envisages to authorisation should be presented if requested, be the purpose of this section. Does he envisage but there is nothing to stop gardaı´ from showing its provisions would be applied for special an original or certified copy to the individual who occasions such as a bank holiday weekend and at other times when there is a risk of people abusing has been stopped for a random breath test. On alcohol and driving? Does he perceive that to be Second Stage, I stated that there would be guide- the purpose of the section or it having a much lines from the Commissioner which would assist more generalised use? gardaı´ in carrying out mandatory alcohol testing. It is important that the proposed legislation in Mr. Gallagher: It would have a much more the Bill gives a degree of flexibility to the Garda general use. If it were only to be applied at spec- Sı´ocha´na. If a garda’s hands were tied, it would ific times such as after a concert, late at night or not achieve the purpose of mandatory alcohol after functions, we would lose out on the impetus testing, for which there is much support. Senator of this measure. Such testing could happen at any White’s idea is the same principle as Senator time. While the official words used are “manda- Quinn’s amendment. In the event of an accident, tory alcohol testing”, the common use of the the person involved can be tested. If he or she is words “random breath testing” suggests it could seriously ill, the test can be carried out in a be carried out at any time or place, subject to hospital. With regard to accidents, I do not authorisation. believe I have heard of anyone being involved in an accident where there was a suspicion at all of Mr. McDowell: This brings me back to the cen- drink being involved who was not tested, except tral question, namely, why bother with this in a situation where one was seriously ill, and of measure. Why should an authorisation be course that can be carried out in a hospital. required in the first instance? If the intention of the Minister of State is that the testing should be Mr. McDowell: I hear what the Minister of genuinely random and general, why require an State is saying. Is it his view that an authorisation inspector to issue an authorisation in advance issued by an inspector to place checkpoints on the specifying a time and place? Why not simply give N11 between Wicklow and Wexford, at any time power to gardaı´ to test randomly? between 12 a.m. and 3 a.m. for the foreseeable future, is valid? Mr. Gallagher: When this issue was debated initially there was a question mark over whether Mr. Gallagher: I have been told that the guide- we could do this or whether it would be consti- lines will be more specific and that they will indi- tutional to do so. Our advice now is that to do cate very clearly where the tests should be carried this, such testing must be prescribed and author- out. It could be one or more places within that ised by an officer of the rank of inspector or chief 101 Road Traffic Bill 2006: 14 June 2006. Committee Stage 102 superintendent. This requirement is to circum- because it appears that such testing is no longer vent the danger that existed at all times, namely, random. Somebody will have to make a decision the suggestion that it was a case of big brother as to where and when such testing is carried out. looking on and that it was unconstitutional. I There is a constitutional problem with such test- attended meetings at which this issue was dis- ing and I hope this provision will solve it. I am cussed. I am advised by our legal people that delighted Senator McDowell brought this issue to what is proposed is the one way that this can be the fore because I was not aware of it. addressed. At some time in the future someone Perhaps the Minister of State has explained this may test the constitutionality of this legislation point and I did not understand it but am I correct but we believe this provision will ensure it is in saying that a superintendent, chief superin- watertight. tendent or inspector will need to have a reason for doing this? If that is so, I do not know to Mr. McDowell: I wish to revisit this issue one whom the officer would communicate that reason more time and I promise I will leave it at that. and, if that is the case, the testing would not be random. Given our Constitution, perhaps there is Acting Chairman: The Senator may wish to no other way of doing this. give his colleagues a chance to contribute. I wish to deal with my amendment No. 32. The Minister of State said that the Garda “may Mr. McDowell: This is probably the most require” and I was hoping that the measure important section of the Bill and I am sure we will would be that the Garda would require such test- not give the other sections the same treatment. I ing in the event of any accident. My mind has assume, although I do not know if this is the case, been put at rest by what the Minister of State that the logic behind that legal advice was that said, namely, that he has never heard of a case of the inspector would on some rational basis auth- an accident in which there was a suspicion of orise a checkpoint for some particular reason and, alcohol abuse where a test has not taken place. I therefore, it would not be random in that sense. may be sticking to the letter of the law on I assume that is the sort of advice the Minister of insisting that on every single occasion a test must State received. be carried out. My main reason for requesting If that is the case, the Bill will not achieve ran- that was that such a requirement would act as a dom testing. As the Minister of State said, this deterrent. If everybody knew that random breath section is intended to have a wide and general testing was in place and that in the event of one effect and for the testing to be genuinely random. being involved in an accident, regardless of the The section does not require the inspector to circumstances, one would be tested for alcohol, have a rational basis on which to set up a check- that would act as a deterrent to drinking or taking point. We may be falling between two stools in drugs and driving. Is there a definite test for that either the testing is random or it is for a spec- alcohol consumption in the event of an accident ific purpose. The Minister of State appears to sug- in other countries, regardless of the cause? The gest that we have a framework which is intended Minister of State might not be aware of that but to suggest that there might be a specific purpose I would be interested to know if that requirement for such testing but we do not require a specific applies elsewhere. purpose for it. The message we are sending to Garda inspectors throughout the country is that Mr. P. Burke: I wish to deal with the point they should use this measure widely. raised by Senator McDowell. What is proposed is a cumbersome way of testing because the dogs in Mr. Gallagher: The implementation of this pro- the street will know the location of the check- vision would be a matter for the Garda Com- points. How far in advance will a superintendent missioner who would delegate authority, and or other officer make an order authorising the guidelines will be drawn up to assist in this testing and will the officer make it on a daily, regard. Such testing will be totally random. This weekly or monthly basis, because the officer must is a matter for the Garda. It will have to use its specify the location? The provision in the section resources to the full. There will be times of the is rigid because the time and location of the day, weekend or year that the incidence of such checkpoint must be specified. If the Garda testing will be much higher than other times. We operate outside the remit of this section, there should leave flexibility in that respect to the will be confusion because it will have to use Garda Commissioner, with a view to ensuring this another Act to prosecute a person who breaks measure would be effective. We are trying to find the law. This is a rigid provision. The Minister of the right balance. State should accept the amendment I tabled which would give the Garda greater flexibility. Mr. Quinn: I wish to continue on this topic. I The teasing out of this section indicates it will not was surprised some years ago to discover that provide for flexibility in its application. there was a constitutional problem with random breath testing or any other testing. I can under- Mr. Gallagher: To respond to Senator Quinn’s stand the Minister of State’s quandary. I am point, I do not know the position on compulsory delighted Senator McDowell raised this issue testing at the scene of an accident in other coun- 103 Road Traffic Bill 2006: 14 June 2006. Committee Stage 104

[Mr. Gallagher.] There is a belt and braces here, namely, that if tries. If that is the position, it does not necessarily one refuses to give a sample it does not mean that follow that we would adopt that position. I am one can simply roll up the window and drive on. satisfied that if one is ill, what is paramount at One can be taken to the nearest Garda station that stage is the health and well-being of the indi- and tested in the traditional way. vidual. If a test is required, it can be carried out Lest there be any misconception, the manda- in the hospital. tory alcohol test is not alone sufficient to pros- Senator Quinn appreciates the thinking behind ecute, even when the gardaı´ stop a driver and this measure. There is no question of having legis- show that he or she has exceeded the limit. One lation in place which would allow anyone to must be brought to the Garda station and given escape if he or she was drinking and involved in the full evidential test. That is the evidence the an accident. gardaı´ will present if the case comes before the I wish to make one further effort to deal with court. the question of the flexibility or rigidity of the mandatory alcohol testing. The whole purpose of Mr. McDowell: Senator Paddy Burke has such testing is that it must be proportionate to raised an interesting issue. The Minister of State the problem and the question is one of who will correct me if I am wrong in saying that the makes that call. It is not for us to call that in legis- lation. We must leave that to the discretion of the current legislation provides that if somebody ref- Garda. The Garda Commissioner will draw up uses to give a sample, the penalties mirror those guidelines in consultation with his colleagues. which would have applied had the person been It is not a question of putting it up in red letters over the alcohol limit, which include disqualifi- that there will be a mandatory alcohol test at cation. In that case one can be disqualified if one some point on the road between Dublin and refuses to give a sample. The Minister of State, Naas, between 5 p.m. and 7 p.m. The inspector or however, seems to suggest a two-tier approach relevant garda from the rank of inspector can do whereby if one refuses on the roadside one can this at short notice. At times it might be an be fined or imprisoned, but one is then brought impromptu decision. If it happens it is because to the Garda station where, if one refuses again the gardaı´ in that district or sub-district feel it is to give a sample, one can be disqualified on pros- proper to do this. ecution of that offence. This is a clumsy way of The legislation should be enacted by the sum- dealing with the problem. Why create separate mer and I hope not too many will suffer as a offences of refusal on the roadside and in the result of this. This will be a major deterrent to station, with different penalties? the too many people who drive having consumed alcohol. When the system is in place its deterrent Mr. Gallagher: One is disqualified only on effect should result in fewer people being caught. refusing to submit to an evidential test. There is This will prove its effectiveness and that people no disqualification for refusing the mandatory are observing the rules. Hopefully, this will lead alcohol test. I cannot conceive of a situation in to a drastic reduction in the excessive number of which the gardaı´ would dismiss one for refusing fatalities we are experiencing. Many of those to submit to a mandatory alcohol test on the side fatalities are the result of drink driving. of the road. They would bring one to the nearest Garda station and ask one to provide the blood Mr. P. Burke: Amendment No. 25 in this group or urine sample which would be a full evidential refers to taking a sample. At the moment if a per- test. A refusal to undergo that would trigger the son breaks a checkpoint and refuses to give a fine or disqualification. sample he is not automatically disqualified. Our amendment proposes that the person can be dis- Mr. McDowell: Why do we need to create this qualified in those circumstances. new offence? If the Minister of State envisages that in all circumstances when one refuses at the Mr. Gallagher: If one is not prepared on the side of the road one will be brought to the station roadside to take the test one breaks the law and where the additional penalty of disqualification is is brought to the Garda station where the gardaı´ may request that one give a blood or urine sam- available, why create an offence of refusal at the ple. Refusing to give the sample is an offence and side of the road? one can be brought to court and may lose one’s Perhaps I am not making myself clear. At the licence. moment we are saying, in theory, that somebody If Senator Paddy Burke, or any other Senator, could be prosecuted twice, for having refused at is stopped and asked to submit to a mandatory the side of the road, at the checkpoint, and again alcohol test, when he knows there is no alcohol for having refused in the station. On the latter in his system, he may still be taken to the Garda offence one can be disqualified but not on the station and asked to provide the necessary sam- first offence. Why is that necessary? I cannot ple. If the alcohol level does not exceed the pre- imagine any circumstances in which a person scribed limit one cannot be disqualified but can would be prosecuted for those two separate suffer the penalty of a fine or imprisonment. offences. 105 Road Traffic Bill 2006: 14 June 2006. Committee Stage 106

Mr. Gallagher: I do not see much that is new nary roadside breath test and if the person fails in this provision. The only new feature is that in to submit to that requirement, he or she will have the past if a garda decided to apprehend one he committed an offence and can therefore be had to form the opinion that one had consumed arrested and subsequently be subject to a blood alcohol. The garda does not have to form that or urine evidential test. opinion now but can ascertain this by way of ran- Therefore, a conviction for an offence under dom testing. In extenuating circumstances when section 12 of the 1994 Act does not attract a con- one does not comply with the test, and the test sequential disqualification. This is because the on the side of the road indicates one has not test to which the section relates does not establish exceeded the limit, that is the end of the matter. any evidential basis to the effect that the driver If, however, the test indicates that one may have has consumed a particular amount of alcohol. exceeded the limit there is the opportunity to give However, where the subsequent evidential test a further evidential test. The purpose of doing establishes that the person has consumed an this is to create a deterrent to those who in the amount of alcohol that exceeds the limits set in past have taken risks. the Acts, a conviction results in an automatic or consequential disqualification. The corollary is Mr. McDowell: While I do not disagree with that if the person did not have alcohol in his or the Minister of State, I do not understand why her system or was not above statutory levels, there is this two-tier level of offences. The subsec- there would be no disqualification. However, if tion under discussion prohibits non co-operation we accepted this amendment, there would be and provides for a penalty of up to \5,000 and automatic disqualification for a person who did possible imprisonment. As I understand Senator not agree to the mandatory alcohol test and that Paddy Burke’s amendment, he says if one is is not acceptable. guilty of that offence one should also forfeit one’s The approach we are adopting in respect of licence because that is what happens now. If one both preliminary roadside testing and evidential does not comply with any of the requirements the testing will apply equally to the new system as penalties are exactly the same as they would be proposed in the Bill and in the case of current had one taken the test and failed it. That is fair arrangements. It is for those reasons that it is not enough because otherwise there would be an possible to accept these amendments, particularly incentive to refuse to take the test. amendment No. 25. I appreciate that the Minister of State says one can take a further evidential test in the station Amendment, by leave, withdrawn. but if one has the option of a fine or imprison- ment, and theoretically one does not lose one’s Amendments Nos. 15 to 30, inclusive, not licence for refusing on the roadside, one could moved. decide that, rather than take a test and fail, one would not take the test but simply pay the fine. Question proposed: “That section 4 stand part Why should we bother having this additional of the Bill.” offence if the real offence will be committed in the Garda station? Mr. McDowell: I want to explore the notion of the “where” rather than the “when” in the con- Mr. Gallagher: Amendment No. 25 proposes text of this section. There is no definition of that in addition to the fine or term of imprison- “checkpoint” in the section, but it seems clear ment a convicted person could be disqualified from any reasonable reading that it must be in a from driving for a period not exceeding two public place. Therefore, I assume it could not, for years. This proposal would mean that a court example, be in a pub car park or somewhere that would have the discretion to apply either of the is not public. I presume the Minister of State will penalties or the disqualification as it saw fit. correct my assumptions if they are wrong. It I will refer to the Road Traffic Acts which seems clear the checkpoint must be on a roadway include a number of provisions to deal with dis- and at a point where cars are moving. qualifications that result from convictions for the Under current powers it is open to gardaı´to commission of specific offences. Consequential stop people before they even get into their cars. disqualifications which are an immediate con- If they are in charge of the car the garda can sequence of a conviction are applied to a specific approach them, ask for their keys and ask them number of serious offences through provisions in to blow into the breathalyser. Am I correct that the Acts. The courts, however, are free to apply it is no longer possible to have this sort of test on disqualifications in respect of any other traffic a random basis under this section? Must the car offence and such disqualifications are referred to be moving on a roadway and be stopped at what as ancillary disqualifications. Section 12 of the we conventionally think of as a checkpoint? Road Traffic Act 1994 which was subsequently substituted by section 10 of the Road Traffic Act Mr. Gallagher: The checkpoint must be in a 2002 and amended by the Road Traffic Act 2005 public place and the vehicle must be stopped at provides current arrangements under which a the location indicated in the authorisation. The person may be required to submit to a prelimi- definition of checkpoint is defined in previous 107 Road Traffic Bill 2006: 14 June 2006. Committee Stage 108

[Mr. Gallagher.] be moving in a public place. Can a person use the Road Traffic Acts. The section provides that the defence that the car was not moving? establishment of checkpoints for mandatory alcohol tests can only be pursued on specific writ- Mr. Gallagher: We have all heard that in our ten authorisation of an officer of the Garda public lives. I have been approached by many Sı´ocha´na not below the rank of inspector. The people making such a case. It is against the law authorisation must clearly establish the date, the to be drunk in charge of a vehicle. One does not place and times of the day when the checkpoint necessarily have to be driving while drunk. It can be operated. The details of how this will work would be unusual for a person who wants a rest will be worked out by the Garda Commissioner to sit in the driving seat. One would imagine that in conjunction with his colleagues and they will a person who wants to sleep would sit in the back make guidelines available. seat or the passenger seat. I am not being facetious when I say that. I have outlined the Mr. McDowell: Is it clear that the individual position in that regard. must be driving the car and must be stopped? Is Senator Paddy Burke spoke about booze buses, there any possibility a person might get into his about which I was informed by my colleagues or her car in a pub car park and a garda would who have been to Australia. The Garda Sı´ocha´na come and try to exercise this power? can make a decision in that regard when it is drawing up the guidelines. I do not want to Mr. Gallagher: A pub car park is not a public impose my views on the Garda as this is a matter place. for the force. If it is well-known in a local pub that mandatory testing is taking place down the Mr. McDowell: What if the person is parked on road and that people should not move their cars, the side of the road and gets into his or her car, the whole purpose of these new provisions will be can a garda approach him or her and use the defeated. If we ensure that there is a degree of power? In that case there is no checkpoint as such randomness in the testing system, it will be very and the car was not stopped. The Minister of effective. We can refer the proposal to provide State may be assured there will be litigation in for booze buses to the Garda. this regard. Mr. P. Burke: That is precisely the point. Mr. Gallagher: There is separate legislation to Booze buses are made available in Australia to deal with that. The checkpoint may be on the side deter people who have been drinking from driv- of a road, but it must be in a public place. ing. They act as a deterrent. The Australian auth- orities are quite happy if such people do not Mr. McDowell: My understanding of the cur- rent legislation is that it is possible for a garda to drive. They do not try to trap people with random apply a test if he or she suspects an individual has breath tests after they get into their cars. They go been drinking, but that the power to randomly out of their way to advertise that testing will take test cannot apply in those circumstances. place so that the public begins to see it as a deter- rent. In such circumstances, people choose to Mr. P. Burke: Australia has booze buses in take taxis rather than to drive home. The aim is areas where police do random breath testing and to deter people from drink driving rather than to the police there advertise when they are carrying trap them. out random breath testing. Will it be the same here or will it be the case that gardaı´ can just Mr. Gallagher: We need to strike a balance step out and stop a person to conduct a random between the carrot and the stick. Senator Burke breath test? has mentioned a carrot. I am sure people in every pub who wish to act responsibly but cannot avail Mr. Quinn: We should have both. I hope ran- of a booze bus are capable of lifting the telephone dom testing will take place. The fact it is random to get a taxi to take them home. When the Garda means there is no need to put a sign up advertis- starts to implement this new measure, it will have ing it, but it could also be a benefit to advertise it. a major deterring effect. The provision of booze My query relates to a matter that has just been buses is very sensible. We are all familiar with raised by Senator McDowell. I read recently very responsible publicans who do not allow driv- about the case of a person who decided not to ers who have consumed alcohol to drive their drive when he left a pub because he had con- vehicles. In such circumstances, publicans will sumed too much alcohol. He sat into his car and drive the people in question home or arrange for was charged by the Garda. His defence was that them to be brought home in taxis. The Australian he had no intention of driving — he was just tak- approach, which involves booze buses, seems to ing a rest because he felt he should not drive. I be working in that country. Perhaps the Garda am not sure what happened in that case. I do not will consider it when they are drawing up the know whether his defence was sufficient. I men- guidelines. tion the case in the context of Senator McDowell’s question about whether a car has to Question put and agreed to. 109 Road Traffic Bill 2006: 14 June 2006. Committee Stage 110

SECTION 5. be increased. If it is clear that the Minister of the day is not satisfied that the penalty fits the crime Amendments Nos. 31 and 32 not moved. or that the rate of inflation is such that it causes a fine to be increased sufficiently on 1 January Government amendment No. 33: each year, changes should be made on an ad hoc In page 7, subsection (3), line 13, to delete basis or by means of the fines Bill that I hope will “charge,” and substitute “charge”. eventually be introduced. Mr. P. Burke: I appreciate what the Minister of Amendment agreed to. State has said. I had hoped he would accept the amendment I have proposed, but it seems he is Mr. P. Burke: I move amendment No. 34: aware of some other way of linking all fines to In page 7, lines 17 and 18, to delete subsec- inflation. I will withdraw the amendment. tion (4) and substitute the following new subsection: Amendment, by leave, withdrawn. “(4) The fixed charge is \300 and such fixed An Cathaoirleach: As amendments Nos. 35, 43, charge shall be index-linked to the inflation 47 and 70 are cognate, they may be discussed rate as set by the European Central Bank and together by agreement. automatically updated on the 1st of January each year after the coming into force of this Mr. P. Burke: I move amendment No. 35: section.” In page 7, subsection (5), line 22, to delete This amendment seeks to provide for the index- “for” where it firstly occurs, and substitute linking of fines. As fines should be index-linked “from”. so they do not go out of date, I suggest they should increase gradually each year in line with I would like to hear the Minister of State’s the annual inflation rate. comments on these amendments.

Mr. Gallagher: While I am not accepting the Mr. Gallagher: Amendment No. 35 basically amendment, I believe it has a great deal of merit. proposes that section 5(5) should state that “the I have suggested in this House on numerous person shall be disqualified from holding a driv- occasions that we could deal with matters of this ing licence” rather than “the person shall be dis- nature by introducing a fines Bill. I understand it qualified for holding a driving licence”. The ter- is proposed to introduce such a Bill at some time minology proposed in the amendments in this in the future. Such legislation would deal with grouping is contrary to the terminology used problems involving the fines provided for in many since 1961 in the Road Traffic Acts, which refer Acts. The level of fines should be linked to the to a person being disqualified “for” holding a consumer price index or some other index. licence, or being disqualified “for” applying for a Section 5(4) of this Bill states that “the fixed licence. This form of terminology has stood the charge” to be applied under the Bill in respect test of time. I am advised that it is the correct of certain drink driving offences is \300. It is an legal terminology. When licence holders are dis- enabling provision that allows the Minister to qualified from driving, they are disqualified “for” prescribe some other amount in lieu of the holding the licence but are not disqualified from amount of \300. If a fines Bill has not been the entitlement to the licence, as it is returned enacted in three or four years’ time, the Minister to them after the period of disqualification has of the day will be able to increase this fine to a elapsed, when they again become entitled to the realistic level. The provisions of section 5(4) of licence. If I were to accept this amendment, there this Bill are standard features of various areas of might be a suggestion that people are disqualified the Road Traffic Acts, which give the Minister “from” holding a licence and that it might not be discretion in the timing and determination of the possible to return it to them. I have been level of the fixed charges which apply. informed by the legal advisers that the correct While I agree with the principle of index-link- terminology is being used. ing with the rate of inflation, as set by the Euro- pean Central Bank and automatically updated on Amendment, by leave, withdrawn. 1 January each year, I do not believe it would be Amendments Nos. 36 and 37 not moved. appropriate to depart from the standard practice I have mentioned by accepting this amendment. An Cathaoirleach: As amendments Nos. 38 and When the Minister of the day decides that a fine 39 are related, they may be discussed together of \300 is not adequate, he or she will have the by agreement. power to increase it. If a fines Bill is introduced by the Department of Justice, Equality and Law Mr. P. Burke: I move amendment No. 38: Reform in the meantime, it will deal adequately with this matter by providing that it will be neces- In page 7, subsection (6), line 26, after “sec- sary to have a statutory regulation if fines are to tion” to insert “is”. 111 Road Traffic Bill 2006: 14 June 2006. Committee Stage 112

[Mr. P. Burke.] son involved will pay the price, which is unfair. I would like the Minister of State to comment This is why I tabled the amendment. Moreover, on amendments Nos. 38 and 39. this provision is outlined in the Bill in a somewhat tough manner and appears to be unreasonable. I Mr. Gallagher: Amendment No. 39 is a techni- ask the Minister of State to accept the cal drafting amendment that proposes to incor- amendment. porate in section 5(6) the phrase “is eligible to be served”, which was omitted from the printed Mr. McDowell: I support the important amend- version of the Bill. ment tabled by Senator Paddy Burke. My under- Amendment No. 38 tabled by Senator Paddy standing of the system as set out in this section is Burke pertains to the same issue as Government that one will be served with a fixed charge notice amendment No. 39. I am advised by the and will be informed subsequently that one has parliamentary draftsman that the Government been automatically disqualified. Obviously, this amendment has the appropriate wording to rem- measure is intended to be more lenient than a edy this omission. Hence, while both amend- normal prosecution and, consequently, one is ments are trying to achieve the same objective, only eligible to be so treated if one has not been the draftsman has informed me that amendment convicted of an offence during the previous five No. 38 will remedy the matter and will suffice. years. I assume the form which will inform people that they may pay \300 will state that they are Mr. P. Burke: In view of the Minister of State’s only eligible to do so if they have not been con- remarks, I will withdraw the amendment. victed within the past five years, and that if they do so anyway, they will be liable to much greater Amendment, by leave, withdrawn. penalties, which are set out later in the section. Senator Paddy Burke is correct. Many people Government amendment No. 39: will simply not read the form. Most people, on In page 7, subsection (6), line 26, to delete receipt of a form stating they must pay a fixed “to be served” and substitute “is eligible to be penalty of \300 and will be disqualified for six served”. months, will not appreciate, and probably will not bother to read, that they are ineligible for such Amendment agreed to. lenient treatment if they have been convicted of an offence during the previous five years. In such Mr. P. Burke: I move amendment No. 40: circumstances, the onus should be on the auth- orities to know whether people have been dis- In page 7, subsection (7)(c), line 40, after qualified or convicted of drink driving in the past “notice” to insert the following: five years and to be able to tell such people that, “, but the person shall continue to be liable consequently, they are ineligible for the more to prosecution in the same manner as if such lenient treatment outlined in this section. fixed charge notice had not been served,”. It is wholly unreasonable to inform someone who receives a form stating that he or she must This is an important amendment and I ask the pay \300 that arising from the operation of this Minister of State to consider accepting it. section, about which he or she is unaware and which he or she is unlikely to read, if he or she Mr. Gallagher: I am considering this amend- pays the fixed fine of \300, he or she could be ment and am in consultation with Parliamentary landed with a fine of up to \5,000 or \10,000. This Counsel. I ask the Senator to give me the oppor- is unreasonable, as most normal people will not tunity to come back to him on Report Stage. know enough to avoid stumbling into committing an offence under this section. Mr. P. Burke: On foot of the Minister of State’s remarks, I will withdraw the amendment with a view to tabling it on Report Stage. Perhaps the Mr. Quinn: I wish to add a word in support of Minister of State will table a similar amendment. this amendment. The word “reasonable” appears to be a reasonable term to use. From that per- Amendment, by leave, withdrawn. spective, the case has been made. I urge the Mini- ster of State to give serious consideration to this Amendments Nos. 41 to 43, inclusive, not amendment. moved. Mr. Gallagher: Before I make a final decision Mr. P. Burke: I move amendment No. 44: in this regard, I should state that the section pro- vides that where a motorist has been detected In page 8, subsection (8), line 6, to delete with a level of not more than 100 mg of alcohol “should in the circumstances have known” and per 100 ml of blood, or the equivalent levels in substitute “, in the circumstances, could reason- urine or breath, he or she will be offered the ably have been expected to have known”. opportunity to pay a fixed charge of \300 and to This is an important issue and I ask the Minister accept a driving disqualification of six months. of State to consider it. If the system errs, the per- However, as the Bill stands at present, a motorist 113 Road Traffic Bill 2006: 14 June 2006. Committee Stage 114 who has been convicted of a drink driving-related before Report Stage. I may resubmit the amend- offence within the five years before the date of ment on Report Stage. the alleged offence, will not qualify. The person who is in the best position to know whether this Mr. McDowell: Before Members finish their is the case is the individual himself or herself. discussion on this topic, I wish to explore further It is a question of making it clear to people that the important issue raised by Senator Dooley. I if they have been convicted in the past five years, refer to the amount of information available at they do not qualify. This will not be in small print any given time about disqualified people. Are on the relevant document. Hence, such individ- there local databases or a national database uals should know themselves whether they have which contain such information? If so, how recent been convicted. The onus should not be on the is such a database and how much is known? It is State to raise this issue at the time. However, important that the Garda should have a database given the Senators’ views, while I do not wish to available to it which would inform it whether a give the impression that I will try to escape from person had been disqualified. As the computeris- this matter, I will consider the issue. Although I ation of the functions of the Garda Sı´ocha´na do not have any preconceived views and am pre- occurred relatively recently, it is possible that pared to examine the issue, Members should not such information does not extend back five years. hang a noose around my neck if I do not accept However, it seems reasonable to expect that in a it on Report Stage. I want to discuss the issue few years’ time, there should be a national data- with legal experts. base, which can be checked by gardaı´ relatively easily, to ascertain whether a person has been dis- Mr. Dooley: Might it be possible for the Garda qualified at some point in the preceding five to ask the person in question, or to make the years. What is the present status regarding such Bill’s provision known to the person in question? information? The Garda do so when issuing general cautions. Might it be possible to suggest that a garda could Mr. Gallagher: Such information is available first raise the question with the individual con- from the national driver file, which is the cerned, asking him or her whether he or she had responsibility of the Department of the Envir- been convicted within the previous five years and onment, Heritage and Local Government. on receiving a negative answer, proceeding with However, both the Garda and the Department of the issuance of a fixed penalty, as outlined in Transport have access to that file. this section? Obviously, in a case where the individual con- Mr. McDowell: Is it available at present? cerned stated that he or she had not been con- victed, and was subsequently found to have been Mr. Gallagher: Such information is available on so convicted, the onus would be placed back on the driver file. such a person. The points raised are valid, Mr. McDowell: Is it possible for a garda to although the State should not be expected to check whether a person has been disqualified maintain a database for the purpose of notifying within the past five years? people, to the extent of leaving itself open to challenge at a later stage. As the Minister of State Mr. Gallagher: Possibly not. It does not have has suggested, the onus should be placed on the to be done on the spot. I want to talk about the driver concerned. However, this could be stage at which it should be known. While it is achieved by asking a simple question as part of necessary for the State to keep a file, it would be the defined language used generally by gardaı´ in a major event in any individual’s life. If one loses the course of issuing a caution. one’s licence it must be a red-letter day and almost as important as one’s date of birth. If a Mr. Gallagher: I will give the matter some person is asked or it is highlighted, it may thought. In particular, I will consider the point at overcome the difficulty. I will examine the which an individual should be made aware of this practicalities of that. provision. I refer to a person who has been found, after being tested on the side of the road and Amendment, by leave, withdrawn. further evidential tests, to be under the level of 100 mg of alcohol per 100 ml of blood. It would Amendments Nos. 45 to 47, inclusive, not be somewhat impractical for the State to be moved. responsible for this. However, I favour such infor- mation being included on the written notice or at Mr. P. Burke: I move amendment No. 48: another stage. People should be cautioned in this regard or, at least, the point should be highlighted In page 8, subsection (9)(b), line 17, to delete for them. I will consider this issue and will come “Exchequer” and substitute “State”. back to the Senator. This is a technical amendment.

Mr. P. Burke: In view of the Minister of State’s Mr. Gallagher: The reference to the Exchequer comments, I hope he will review this matter is a standard provision used in all Road Traffic 115 Road Traffic Bill 2006: 14 June 2006. Committee Stage 116

[Mr. Gallagher.] in proportion with the seriousness with which we Acts where money is received by the Garda should regard that offence. I admit that driving Sı´ocha´na and specifies the arrangement for the without a licence is not as serious as driving with- payment and disposal of moneys for the benefit out insurance, which should result in the vehicle of the Exchequer under the Minister for Finance. the person is driving being impounded. However, It would be inconsistent to change the term “Ex- given the importance we attach to driver testing chequer”, which has been in use for many years, and the difficulties in that area, it is not sensible to “State”. to regard the offence of driving without a valid licence as anything other than serious. That is Amendment, by leave, withdrawn. why I suggest we raise the maximum fine in this case from \2,000 to \3,000. The Minister spoke Amendments Nos. 49 and 50 not moved. about the fines earlier and I was interested to hear that there is a separate fines Bill that will An Cathaoirleach: Amendments Nos. 51 and probably relate this to inflation. However in both 91 are related and may be discussed together. Is these cases \1,000 is not a heavy fine and I urge that agreed? Agreed. the Minister to consider increasing them to \3,000. Mr. Quinn: I move amendment No. 51: Mr. Gallagher: I appreciate Senator Quinn’s In page 8, subsection (13), line 38, to delete \ \ motives in bringing forward these amendments “ 1,000” and substitute “ 3,000”. and I was interested to hear about the situation Both amendments seek an increase in the fine. I in Finland where fines are related to one’s put forward amendment No. 51 because the exist- income. It may have some merit, not today but ing wording does not recognise the full serious- in the future. On the proposed fines of \3,000 in ness of the offence. This subsection imposes a amendments Nos. 51 and 91 we should take other penalty for an offence under the preceding factors into consideration. They are dispro- section which applies to the requirements for a portionate to the range of fines for other road person whose licence has been suspended to sur- traffic offences set out in this Bill and in the road render his or her licence to the licensing auth- traffic codes generally. There is a proposed fine ority. We have read in the press that many people of \1,000 for failing to surrender one’s licence get around the suspension by failing to hand over and \2,000 for letting one’s licence lapse for more their licences. This allows them to continue driv- than 12 months, which also attracts penalty ing and if they are stopped for a routine inspec- points, the effect of which is difficult to quantify tion there is nothing to show the inspecting garda in monetary terms. Therefore the fines do not that the licence has been suspended. That is a stand alone. The penalty points are provided for serious offence and to impose a maximum fine of in section 16. The fines in the Bill are adequate \1,000 is no more than a slap on the wrist. We and I hope a future Bill will deal with inflation. need to show people that we mean business about taking away their licences and following up on Amendment, by leave, withdrawn. the procedures involved. I therefore propose that we increase the maximum level of this penalty to Mr. P. Burke: I move amendment No. 52: \ 3,000, which is still a small amount. As I men- In page 8, between lines 38 and 39, to insert tioned here some time ago, I was impressed in the following subsections: Finland recently that the fines are related to one’s income. A senior executive in one of the tele- “(13) A person who, subsequent to the phone companies was fined approximately receipt by that person of a notice under subsec- \200,000 for a motorbike offence because he had tion (11), drives or attempts to drive a mechan- happened to have high earnings that year. Some- ically propelled vehicle in a public place, shall body else might have been fined only \30 or \40. be guilty of an offence. A fine of \1,000 is not sufficient. (14) A person who is guilty of an offence Amendment No. 91 proposes replacing \2,000 under subsection (13) shall be liable on sum- with \3,000 on page 16, line 24, similar to amend- mary conviction ment No. 51. I propose this amendment because \ the penalty in the Bill is not appropriate to the (i) to a fine not exceeding 5,000, gravity of the offence of not having a valid driving (ii) to a further and consecutive disqualifi- licence. The subsection provides for a reduced cation of a period of not more than 2 years, fine where the person has had a valid licence but or failed to renew it during a period of 12 months after it expired. The penalty in that case is a (iii) to both.”. maximum of \1,000, which should be an effective This covers the issue of a person driving while deterrent that would encourage people to be disqualified. This amendment creates a separate diligent about renewing their licence. That offence for a person driving while disqualified situation aside, the offence is of not having a and sets out the penalties. It also allows for the licence at all. A maximum fine of \2,000 is not extension of the disqualification period and a 117 Road Traffic Bill 2006: 14 June 2006. Committee Stage 118 fine. It is worth considering in view of the serious Amendment put and declared lost. situation in which a person who is already dis- qualified takes to the road. Such a person Amendment No. 53 not moved. deserves rougher treatment than he or she cur- rently receives. Government amendment No. 54: In page 9, between lines 17 and 18, to insert Mr. Gallagher: The proposed new subsection the following new subsection: (13) would have the effect of disqualifying a per- son in advance of a date specified in a notice “(17) In this section ”driving licence“ under subsection (11), which is 14 days from the includes a learner permit.”. date of the notice. As the date of disqualification would be dependent on receipt of the notice, such Mr. Gallagher: This is a drafting amendment. a provision would be difficult, if not impossible, to enforce, it would be unwise to include it in the Amendment agreed to. Bill. The Bill is stronger as it stands. On the pro- posed subsection (14), the penalties for driving Section 5, as amended, agreed to. while disqualified already provided for in section 6(2), which provides for a mandatory disqualifi- SECTION 6. cation of at least one year, and section 12(b), \ which provides for a fine of 5,000 or imprison- Question proposed: “That section 6 stand part ment not exceeding six months, or both, meet the of the Bill.” objective of Senator Paddy Burke’s amendment. There is little difference between our positions Mr. McDowell: It would be a pity to allow this and, having explained this, I hope Senator Burke section to go by without some debate, even if that might consider withdrawing his amendment. simply involves me expressing my concerns. This section aims to provide for a quick form of pros- Mr. McDowell: This is an ancillary issue to ecution for people who have had a few pints. The Senator Burke’s amendment that relates to the limit of 100 mg of alcohol per 100 ml of blood same general area. Under subsection (13) there is equates to two or three pints, roughly, for the an assumption that the onus is on the individual average male of reasonable stature. I understand who pays the fine to prove that he has done so that there are people, perhaps quite a few, who and that is reasonable. However, the onus is also can drink a pint and a half and be totally on the person who claims never to have received incapable of driving. The bulk of people caught a disqualification notice to prove that this is the by the use of this section will have consumed a case and this is problematic. How can one prove relatively small amount of alcohol, by the tradit- one did not receive something? It is reasonable ional Irish social definition. I am not saying they in such circumstances that the person who served should not be prosecuted, I merely think we the notice be responsible for proving that they should keep our eyes wide open. did so. It is my understanding that, generally speaking, Mr. Gallagher: The notice will be issued by this offence is not prosecuted in large numbers at ordinary post and this could present a grey area. the moment. There are few prosecutions of I will conduct discussions with the officials and people who have driven a vehicle with 80 mg to legal advisers on this. 100 mg of alcohol in their blood. I do not know why this is the case. It could be that the Garda Mr. McDowell: I can imagine circumstances is taking a pragmatic view and does not want to where a person driving while disqualified will prosecute for such a level of alcohol consump- claim never to have received the notice. The tion. It has been speculated that the techniques Department of Transport expects such people to of measurement are not sufficiently sensitive to prove they did not receive it, but how can they do allow it be argued in court that a person has 85 so? A certificate of posting or another evidential ml, rather than 75 ml, of alcohol in his or her requirement should exist in order that it can be blood. proven that a disqualification notice has been This Bill should be based on analysis and evi- served. dence. I would like to know the number of acci- dents that occur largely because of the consump- Mr. Gallagher: I will have discussions on this tion of this level of alcohol. How many people issue and whether it can be proven easily. The who have driven after drinking two to three pints Garda will be able to prove a notice was issued, have been prosecuted? We could have a more but I take Senator McDowell’s point and I will informed debate about the wisdom of providing consider it. for this sort of quickie mechanism if we had this information. This information has not been in the An Cathaoirleach: Is amendment No. 52 being public arena heretofore and I have a funny feel- pressed? ing we will not get it in the near future. If this is the case then we should publicly acknowledge Mr. P. Burke: Yes. that this is a far more rigorous approach to the 119 Road Traffic Bill 2006: 14 June 2006. Committee Stage 120

[Mr. McDowell.] an agreement, presumably with a private sector consumption of a level of alcohol that many company, to serve the notices. people regard as normal and acceptable and that The process set out in the section seems very this is being done without evidence that this cumbersome, involving three or four different amount of alcohol causes many accidents. I know agencies before somebody is disqualified and we it impairs judgment and that some people can be have a record of it. I do not have a solution for very drunk after very few beers but I am not con- making it easier, but it appears to be a very cum- vinced that we should introduce this level of strict bersome process. liability for what are, largely, exceptional cases. I appreciate that this is not the politically correct Mr. Gallagher: I would hope the situation as thing to say, but it is a view, perhaps not articu- outlined in section 5(16)(a) is relatively clear. The lated as often as it might be, which is very com- section states: mon in Ireland and which should be reflected in these Houses. The Minister for Justice, Equality and Law Reform may by an agreement in writing Mr. Gallagher: The Garda did not make a con- entered into with any person, upon such terms scious decision that those who were at a level of and conditions as may be specified in the agree- between 80 mg and 100 mg of alcohol per 100 ment, provide for the performance by that per- ml of blood should not be pursued. In the past, son, of any of the functions of a member of the legislation stated clearly that a garda had to form Garda Sı´ocha´na relating to the issuing of a an opinion on the level of alcohol consumed. I do fixed disqualification notice, the receipt of such not know of any cases of people who were not notice, the acceptance of a payment and the pursued at the level suggested, however, perhaps issuing of a receipt of such payment, as are set Senator McDowell does through his profession. I out in this section or of the function of the have no statistics relating to this but if they are Commissioner in respect of the issue of a notice available I will circulate them. under subsection (11). This Bill ensures that those driving with I wish to refer to an agreement referred to in the between 80 mg and 100 mg of alcohol per 100 ml earlier paragraph, which may apply to the per- of blood may now be stopped by way of manda- formance of all or any of the functions to which tory alcohol testing and the new administrative that paragraph refers in respect of all the selected sanction will be another deterrent. It may be said offences. The Senator may know that An Post is that six months off the road may be too long for responsible for accepting the fixed charges. This an offence where very little alcohol has been con- will now be a matter to be decided with the sumed, but I believe it is quite lenient. One drink Department of Justice, Equality and Law is too many and one of the aims of this Bill is to Reform. catch people who drive with between 60 mg and 100 mg of alcohol per 100 ml of blood in their Question put and agreed to. systems where it is not obvious from their behav- iour and the garda cannot form an opinion. SECTION 7.

Mr. P. Burke: Senator McDowell raises an An Cathaoirleach: As the Government has also important point relating to statistics. We should tabled amendment No. 55, the asterisk should gather this information and make it freely avail- appear before the amendment on the list of able to public representatives, the media and the amendments. public. Legislation was passed on the Road Safety Authority recently. Will all of this information be Government amendment No. 55: collated and passed on to this authority in future or will we have access to the information men- In page 11, line 20, after “whom” to insert tioned by Senator McDowell? It is important to “a”. see where we are going on this issue. Amendment agreed to. Mr. Gallagher: Any information, not of a sensi- tive nature, that is available to me will be made Government amendment No. 56: available to the House. It would be interesting to have a benchmark against which to measure the In page 11, line 22, to delete “this section” effectiveness of the new legislation so that we and substitute “section 7 of the Road Traffic could compare statistics with those prior to the Act 2006”. enactment of this Bill. Mr. Gallagher: This is an amendment to correct Mr. McDowell: The section envisages farming a typographical error. out the process of sending out notices. Perhaps the Minister of State will talk us Amendment agreed to. through that and tell us his intentions. I notice subsection (15) allows the Minister to enter into Mr. P. Burke: I move amendment No. 57: 121 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 122

In page 11, line 29, after “disqualification” to to decide the appropriate circumstances in which insert the following: the disqualification may be reduced. They would decide any extraordinary and exceptional circum- “, provided that there are extraordinary and stances of the case. exceptional circumstances to justify such an There has been a practice over the years that application”. after a period, a person who has been disqualified This amendment relates to the removal of dis- may apply to the court which handed down the qualifications. Until now, one could apply to get disqualification to apply again for the licence. In a licence back after six months. I propose that general, the licence may be returned. The judges this would only apply when extraordinary and did not take such decisions lightly, and it would exceptional circumstances justify such an appli- have depended on the case made by the lawyer cation. There would have to be justification to in question. The interpretation should be left to apply to get a licence back. the courts and the discretion of the judges.

Mr. McDowell: This is an interesting issue. The Amendment, by leave, withdrawn. practice heretofore, as I understand it, is that after a person has been disqualified for a certain Amendment No. 58 not moved. period, he or she could get the licence back. This was the normal practice in most District Court Business of Seanad. areas and District Court judges were inclined to Ms O’Rourke: I ask the Members, through the give back a licence if there were any reasonable Cathaoirleach, if they felt a half hour at this stage causes to do so. I applaud what the Minister of would complete Committee Stage? I have been State is doing, as he is at least setting out some checking the amendments which have been dis- restrictions. posed of, and a large number are linked and have A person still does not have to back up an been discussed together. Perhaps the Members application or state that it is for a particular could indicate if a half hour now will complete reason. That is, of course, the practice. The per- Committee Stage? I do not know how many son must go in, indicate that the required period amendments are left to be discussed. is over and ask for the licence back. With the manner in which this is written, it is almost as if An Cathaoirleach: Some 20 amendments are the licence is given back for good behaviour. left to be discussed. I doubt if we would complete What is the rationale for providing early return Committee Stage in that timeframe. of licences? As Senator Paddy Burke has indi- cated, if a person is disqualified for six months, a Ms O’Rourke: The Cathaoirleach doubts that year or two years, and most people assume driv- a half hour would be enough. I am not seeking to ers would be disqualified for two years, these dri- disrupt proceedings. vers are not, in practice, disqualified. Why are we deliberately creating a regime where the period An Cathaoirleach: I am only giving my opinion. of disqualification is shortened? It does not seem I do not know what other Members think. to be a logical or sensible action to take. On the one hand we are increasing the period of disquali- Ms O’Rourke: It is up to other Members of fication but we are at the same time acknowl- course. edging that a licence can be returned early for no particular reason. Mr. Wilson: We have gone through many amendments already. Mr. Gallagher: This section deals with the removal of disqualification orders in cases where Ms O’Rourke: I have been crossing them off as a person has been disqualified from holding a they have been disposed of. licence for a period of more than two years and where the order is the first such order made in An Cathaoirleach: There are still 20 amend- respect of that person within a period of ten ments and any amendments grouped with these years. The Bill provides that a person to whom to be discussed. this section applies may at any time, following the completion of a half of the period specified and Ms O’Rourke: That would not get done in a taking into consideration the previous conditions half hour. I thank Members. mentioned, apply to the court which made the order for the removal of the disqualification. Road Traffic Bill 2006: Committee Stage Senator Paddy Burke’s amendment proposes (Resumed). that those making an application for the removal An Cathaoirleach: Amendments Nos. 59 and of a disqualification would be subject to a proviso 60 are related and may be discussed together by that “there are extraordinary and exceptional cir- agreement of the House. cumstances to justify such an application”. It would be inappropriate to insert a provision such Mr. P. Burke: I thought we had discussed as this in legislation. It is a matter for the courts amendments Nos. 59 and 60 already. 123 Health (Repayment Scheme) Bill 2006: 14 June 2006. Report and Final Stages 124

An Cathaoirleach: No. They are related and Progress reported; Committee to sit again. may be discussed together. Sitting suspended at 1.35 p.m. and resumed at Mr. P. Burke: I move amendment No. 59: 2.30 p.m. In page 11, line 39, to delete “two-thirds” and substitute “three-quarters”. Health (Repayment Scheme) Bill 2006: Report and Final Stages. I would like to hear the Minister of State’s thoughts on this issue. An Cathaoirleach: A Senator may speak only once on Report Stage except in the case of a pro- Mr. Gallagher: There is a link between this poser of an amendment, who may reply to the amendment and the previous amendments. Pro- discussion thereon. Each amendment must be posed amendment No. 59 in the name of Senator seconded on Report Stage. Paddy Burke represents a fundamental change to the current provision for an applicant to apply for Mr. Browne: I move amendment No. 1: the removal of a disqualification. The Bill has made it more difficult to get a driving licence In page 10, between lines 36 and 37, to insert back after disqualification by ensuring that such the following: disqualification is at least equal to two thirds of “(3) Where the Executive makes an appli- the period of disqualification rather than half, cation pursuant to subsection (2)(c) which it has been in the past. The Senator proposes this period to be (i) at least 28 days’ notice shall be given to increased to three quarters. Considering the the patient in question and/or, as appro- approach in this Bill is reasoned and balanced, priate, to the patient in question’s next of increasing disqualification to three quarters of the kin, and period of disqualification could be seen to be (ii) the patient in question and/or, as unreasonable. Subsection (3) allows the court to appropriate, the patient in question’s next of take into account the character of the applicant kin, shall have the right to be heard at, and and his or her conduct after the conviction, as to make submissions to, the hearing of the well as the nature of the offence. Circuit Court in whose circuit the hospital or The court may decide not to return the licence. other institution, as the case may be, is There is no obligation on the court to do so, be it after 50%, 66.66% or 75% of the prescribed situated, time. The Bill addresses the principle of the pro- in respect of any such application.”. posal of a counsel at work. The only difference between us is a question of whether two thirds or The amendment concerns the fact that the patient 75% is appropriate. In the past the portion was has a right to know if the Executive is to take 50%. Two thirds is a reasonable balance and a money from his or her private property account. compromise. Regarding amendment No. 60, I I recently received a query concerning a constitu- consider that 14 days is a sufficient period to con- ent’s elderly mother in a nursing home. She was tact the Garda. told that money would be taken from her account to buy her a wheelchair or crutches. Will the Amendment, by leave, withdrawn. Minister of State clarify the position that obtains in such cases? While I understand it may be Amendments Nos. 60 and 61 not moved. necessary to take money from accounts every so often for various reasons, I believe it is not war- Section 7, as amended, agreed to. ranted for the purchase of an aid or appliance for a person who might only avail of it for a year or SECTION 8. two and then leave it behind when he or she passes on. I am concerned that section 9 of the Amendments Nos. 62 to 65, inclusive, not Bill is open to abuse and it is very important that moved. the Department monitor the system to ensure that, where the HSE is removing money from Question proposed: “That section 8 stand part patients’ accounts, it, the executive, has clear of the Bill.” guidelines determining how much it should Mr. McDowell: Will the Minister of State remove and the reason therefor. provide information on recognition of foreign Patients and their families should know exactly licences. Does the Cathaoirleach wish to defer what they are paying for. As far as I was aware, the discussion? aids and appliances such as wheelchairs and crutches were exempt from the charges. My An Cathaoirleach: As it is 1.30 p.m. we must amendment seeks that patients or, in the case of conclude the discussion. Senator McDowell will their being incapacitated, their next of kin will be have possession on section 8 when we resume given 28 days notice if money is to be taken from the debate. their accounts. 125 Health (Repayment Scheme) Bill 2006: 14 June 2006. Report and Final Stages 126

Dr. Henry: I second the amendment. This is a Members on all sides in progressing the legis- rather grudging Bill. None of us wanted to delay lation. As a goodwill gesture, we made an ex its passage because it has taken so long to intro- gratia payment, of which just under 11,000 people duce it and deal with the issue. Those who have availed. It is not a matter of the Government had money taken from them for years, not wishing to delay payment because it is important through the fault of the Minister of State but that it put in place proper safeguards to ensure through that of various Ministers and the Depart- the money is given to those who deserve it and ment over the years, should be in a position to from whom it was wrongly taken. I hope the know what is happening and be given plenty of announcement of the independent company notice. The Fine Gael amendment goes some way involved in the administration of the scheme will towards ensuring transparency regarding this be made later this week and that the whole pro- issue. cess can be completed shortly thereafter. We will It is very disappointing that so little money has see the repayments being made as quickly as been paid to people since we recognised it had possible. been taken illegally. The children of those who are no longer alive may not pursue claims but we Amendment put and declared lost. have a great responsibility to ensure that those who are alive are informed properly and not Mr. Browne: I move amendment No. 2: treated like children. It should be recognised that In page 13, between lines 32 and 33, to insert they have a right to know what is happening to the following: the accounts. “(9) Any Fund established under subsection Minister of State at the Department of Health (1) shall be so established for an initial period and Children (Mr. S. Power): I am not in a posi- of 3 years only. tion to accept the amendment because, in certain (10) After the expiration of 3 years from the instances, it may prove difficult to identify and establishment of any Fund under subsection contact the next of kin of the individuals con- (1), the Minister shall make a determination as cerned. As an alternative, the Bill stipulates in to whether the Fund should continue in subsections 9(4)(a) and 9(4)(b) that an account existence.” holder will be informed in writing of the inten- tions of the HSE and that the HSE will place an This relates to the fund accruing on foot of the advertisement in a national newspaper outlining forfeiture of compensation due to one as a result that it intends to apply to court to expend moneys of one’s donating it to the HSE. Fine Gael is con- on behalf of patients residing in a certain insti- cerned that there is no time limit on the spending tution. It is open to any person who so wishes of this money. In reality, it is most unlikely that to make an application or submission to court in it would not be spent but we are specifying that respect of any such application by the HSE. The it be spent within a three-year period. It should court, after considering the matter, will give a not be syphoned off for different projects over direction that the judge considers to be in the best time. If part of a fund remains three or more interest of the patient. Section 9(4) is deemed years after its establishment, the Minister should sufficient for this purpose. Deputy Twomey make a determination on whether the fund tabled an amendment similar to that of the should remain in existence. I propose a time limit Senator but it was rejected following much con- on spending the money in the fund. sideration in the Da´il. The HSE has already begun to the examine the Dr. Henry: I second the amendment. I support regulation of patient private property accounts it because it would be good to have a sense of and has established a working group in this urgency. This has not featured to date and there- regard to deal with their administration. The fore Senator Browne’s amendment would be main function of the group will be to ensure that very useful. the administration of the accounts meets all legal and regulatory requirements; operates in the best Mr. S. Power: I do not accept the amendment interest of patients in as responsive a way as is because it is the intention that not only those who practical; takes appropriate account of the input are due repayment will be able to donate money of patients’ relatives and friends in so far as this to the fund but that others will also be able to do is practical; and is consistent with best practice in so. Any money donated to this fund will not be respect of financial controls, transparent account- subject to capital acquisitions tax liability. ability and corporate governance arrangements. Reports on the operation of the fund will be laid It should be efficient and represent value for before each House of the Oireachtas. The amend- money in the use of scarce staff and other HSE ment as proposed would lead to practical diffi- resources. The HSE will be providing the guide- culties if any money remained in the fund after a lines, which will be ready pretty soon. period of three years. This fund can accept We must be sensible about the scheme. It is not moneys other than those donated through the possible to make any payments until the Bill is repayment scheme and it would not be practical, passed. I appreciate the support we received from therefore, to discontinue the fund if money 127 Health (Repayment Scheme) Bill 2006: 14 June 2006. Report and Final Stages 128

[Mr. S. Power.] down the private route, who tried but were remained in the fund at the end of the three unable to get a bed in a public nursing home. In years. one respect I hope they are successful and in It is envisaged that the fund will be adminis- another I hope they are not because I am aware tered by the Health Service Executive, which will of the bill that will arise from that. I hope we have include managing and assigning the moneys and all learned from this experience. This issue has accounting for and reporting on the fund. If it is been going on for the past number of years. not practicable to assign funds to a specific unit, There was ambiguity over it and we finally have funding should be ring-fenced for the same closure on it. It is vital, however, that the money service in the same area. The HSE intends, as is given to those who are owed it. The State is soon as possible, to establish a working group very quick to take money from anyone who incorporating representatives of the service areas claims an overpayment and it is only fitting that and finance to agree the criteria for selecting the the State would pay back the money overcharged. service improvements that will benefit from the It is vital that the Minister examines the issue disbursement of the fund. of nursing home charges to ensure patients are We are setting up the fund but one would need fully aware of what they are liable for in that a magic wand to predict the type of funds that regard. When one gets a call from a nursing home will be made available. We are offering the to say it is taking money out of one’s elderly rela- opportunity to the people making a donation to tive’s account, be it a father, mother, uncle or the fund to express a wish as to the way they aunt, for a particular aid and appliance, one is in would like the money spent and we will try to a vulnerable position because one must assume facilitate that request as far as is possible. the nursing home is telling the truth. We do not want a scenario to arise where people must give Amendment put and declared lost. back money they should not have been paid and then subsequently cases arise where money was Amendment No. 3 not moved. taken out illegally on top of that. We must be careful to monitor that. Bill received for final consideration. I hope this private company — we do not yet know its name — gets the work done within the Question proposed: “That the Bill do now two years. I still have not received a reply to my pass.” freedom of information request. I hope it will be cheaper in the long run, that it will get all the Mr. Glynn: I thank the Cathaoirleach and the work done within the two year period and that Minister of State, Deputy Sea´n Power. I thank we can all move on. I hope also we will not follow also my colleagues, Senators Browne and Henry, the line of the Army deafness claims, the redress for their contributions and the responsible man- board or other cases where budgets were overrun ner in which they applied themselves to the pass- and timeframes extended. ing of the Bill. It is important that a situation that I welcome the Bill. I would have preferred to has obtained for some 30 years and beyond would see various changes in the Bill but at least it is a be corrected and this Bill seeks to do just that. start. I hope the private company involved, the My views are on public record. I hope the HSE and the Department of Health and Children people who had money taken from them illegally will ensure that those who are owed money get it will be in their health to receive it although, as soon as possible. Unfortunately, many of them regrettably, a number of them will not. I hope the are now deceased but those who are still alive can money that goes to relatives will be put to some put it to good use. good use. As somebody who worked in psychi- atric services for many years, I applaud the Dr. Henry: I congratulate the Minister of State people who regularly visited their relatives and I on bringing the Bill through the House. I have exhort those who have not made it a practice to many reservations about it; I am sure we will get do so. Such visits are very important for the men- many complaints and court cases will arise out of tal health and general well-being of these people, it. This process should be a lesson to us in that although I accept that in some cases relatives the Government and Departments can take cannot do that. I appreciate the support and co- money from people quickly and easily but it is operation of my colleagues on the other side of very difficult for people to have that money the House. repaid to them. This is not the only area where this happens. I Mr. Browne: I thank Senator Glynn for his had an experience in the not too distant past comments and the Minister of State and his where, having been undertaxed for years, which I officials for their help and explanations during was unaware of, I was asked to repay thousands the debate on the Bill. of euro. I was able to pay up but there are people I welcome the passing of the Bill, although I who would not find it quite so easy to pay up. have reservations about some aspects. We will all They would have spent what came in to them watch with keen interest the outcome of the court over the years and then find themselves in a very cases concerning those who were forced to go difficult position. I mentioned it to a woman who 129 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 130 told me she had a similar experience and it has be made in the near future. I thank everyone for taken her 18 months to pay back a much smaller their assistance in making it all possible. sum before she could get a pension. It is very dif- ficult when money is demanded from one at short Question put and agreed to. notice by a Department. I am not complaining about my case but it would have been nice if they Sitting suspended at 2.55 p.m. and resumed at had sent on the pension when they got the cheque 3.30 p.m. from me months ago. These things happen, however, but this has been a very slow procedure Business of Seanad. for those who had money wrongly taken from them in the past. I hope, as Senator Browne said, Ms O’Rourke: I wish to make a proposal to that the firm chosen to get involved in the distri- the House regarding a change to the Order of bution of the money gets into action promptly Business. The Road Traffic Bill 2006, Committee and these people are repaid the money taken Stage, will resume on the completion of Private from them illegally as soon as possible. I con- Members’ business. If the debate on Second gratulate the Minister of State and his officials on Stage of the European Communities bringing the Bill through the House. (Amendment) Bill 2006 is not completed, it will resume tomorrow. Minister of State at the Department of Health Acting Chairman (Ms O’Meara): Is that and Children (Mr. S. Power): I thank the agreed? Agreed. Senators for their comments. The issue of repay- ing this money has attracted much attention for over 12 months. We are happy with the broad European Communities (Amendment) Bill 2006: support we received from Senators and Deputies Second Stage. as we tried to bring the legislation through both Houses. I thank them for their assistance in that Question proposed: “That the Bill be now read regard and the contributions they made. a Second Time.” I thank the officials in the Department of Minister of State at the Department of Foreign Health and Children for their hard work. Much Affairs (Mr. Treacy): Is cu´ is a´thais dom bheith ar of the work involved in drawing up the legislation ais arı´s chun freastal ar an Teach iontach seo. and much of the consultation that had to take This Bill amends the European Communities Act place before the legislation was drawn up goes on 1972, to allow certain parts of the treaty providing behind the scenes and people are not aware of for the accession of the Republic of Bulgaria and the effort that goes into it but I thank them most Romania to the European Union become part of sincerely for the hard work they have done. the domestic law of the State as soon as Ireland The Government made a promise, following ratifies the treaty. The Bill is in line with earlier the Supreme Court decision, that we would repay amendments of the European Communities Act the money and it was a question of trying to work 1972, through which previous EU treaties were out the best system to use. The main priority was given domestic legal effect. that, apart from giving the commitment to repay The Bill enables Ireland to welcome Bulgaria the money plus interest, we would try to intro- and Romania into the EU family. Their entry will duce a system that was a simple as possible and complete the fifth enlargement of the EU, which that people would feel happy making their appli- is the largest and most far-reaching yet. It began cation. It was clear that the whole application with the fall of the Berlin Wall and the popular process should be straightforward and we would overthrow of unrepresentative communist have as little red tape as possible. We set up a regimes in central and eastern Europe. The long helpline which people could contact to put in and complex process these countries underwent their applications and register. We also had the in order to join the EU had none of the drama ex gratia payments. We have many of the details associated with their impressive transformation on it, therefore, and we are anxious that the from totalitarianism to democracy. Nonetheless, moneys be paid out as quickly as possible. We EU membership is proving to be central to the made a promise following the decision of the success of the democracies of central and eastern Supreme Court. I am delighted we are honouring Europe, whose economies are already benefiting that promise. The legislation has not gone from the opportunities of membership. They have through as quickly as we had hoped, but a pinned their national aspirations firmly to the number of issues had to be dealt with and it was EU mast. important that we put in the appropriate safe- Ireland has promoted this enlargement from guards to protect those who might not have the the outset. In April 1990, the Irish Presidency, functional capacity to manage their financial under the leadership of the then Taoiseach, the affairs. I am quite happy that those safeguards are late Charles Haughey — go nde´ana Dia tro´ caire contained in the legislation. As the Bill is now ar a anam uasal dilı´s — hosted a special meeting passed, the legislative hurdle has been cleared. It of the European Council in Dublin to consider is now a matter for the processing of the appli- the peaceful revolutions in central and eastern cations to commence. I hope the repayments will Europe. Mr. Haughey was a staunch advocate of 131 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 132

[Mr. Treacy.] sure that both Bulgaria and Romania will do Ireland’s participation in the European project. everything they can to meet the criteria for His successful running of the Presidency in 1990 accession on that date. While we await final con- earned him the admiration of his EU colleagues, firmation of the actual date, we should remember in particular that of the then President of the EU that the substantive issue of accession by both Commission, Mr. Jacques Delors. countries is not at stake. Ireland and all the other Under Mr. Haughey’s chairmanship, the meet- member states have already agreed to accept ing in April 1990 agreed the first step towards Romania and Bulgaria into the European Union. EU membership for the emerging democracies of Since last year, both countries have been partici- central and eastern Europe. Almost a decade and pating in almost all EU activities and making a a half later, on 1 May 2004, the Irish Presidency valued contribution. oversaw the final step and welcomed ten of those We should not underestimate the effort countries into the EU. The same Irish Presidency required by both countries to meet the criteria for also made significant progress on the accession EU membership. In its May report, the Com- negotiations with Bulgaria and Romania. These mission explicitly acknowledged their consider- negotiations ended in success shortly afterwards able achievements so far. Both countries have sig- and on 25 April 2005, the accession treaty for nificantly reduced the number of areas that need Bulgaria and Romania was signed by the acced- to be addressed before accession. Bulgaria has ing countries and the EU member states, includ- reduced the number of “red flag” issues from 16 ing Ireland. to six while Romania has reduced the number To enter into force, the treaty must be ratified from 14 to four. by all signatories by 31 December 2006. Bulgaria Some problem areas are common to both coun- and Romania have already ratified the treaty, as tries, especially putting in place the necessary have 17 member states. All other member states arrangements for the disbursement of EU funds. have confirmed that they will ratify it before the In the agricultural area, both countries need to deadline. It is important that Ireland should also set up a proper, integrated administration and live up to its obligations towards the EU and its control system. There is a need to build up ren- two incoming member states. The Bill before the dering, collection and treatment facilities. While Seanad today represents one of two necessary both countries need to sustain their efforts in steps towards Ireland’s ratification of the treaty. reforming the judiciary and fighting corruption, The other step was successfully completed on 24 Bulgaria has been singled out as needing to May 2006, when the Da´il passed a motion devote urgent attention to this area. According to approving the terms of the treaty. Once all the the Commission, Bulgaria needs to show tangible signatories have ratified the treaty, the path will results in investigating and prosecuting organised be clear for Bulgaria and Romania to join the EU crime networks, in the more efficient and system- on 1 January 2007. atic implementation of laws for the fight against However, under the accession treaty, the Euro- fraud and corruption, and in intensified enforce- pean Union has the power to postpone the ment of anti-money laundering provisions. Both accession of one or both countries for a further countries also need to step up their efforts to year. This would happen should the Council, on combat human trafficking. the advice of the Commission, decide that either While our focus at this stage is necessarily on country is unable to fulfil the requirements of what remains to be done, we should not forget membership in 2007. The final decision on the the remarkable progress Bulgaria and Romania date of accession will be made in the autumn, have already achieved. Within a matter of years after the Commission updates the Council on the they have wiped out decades of economic stag- remaining issues affecting the accession of nation and totalitarian oppression and created Romania and Bulgaria. functioning democracies and market economies. The Commission issued comprehensive moni- They took on the challenge of meeting the exact- toring reports on both countries on 16 May 2006. ing membership requirements of the EU and The reports commended Bulgaria and Romania made the best use of available resources to on the transformation of their political and econ- implement the necessary reforms. The speed and omic systems in line with EU membership the depth of their progress towards EU member- requirements. On the downside, however, the ship is a credit to the determination and persever- reports also identified problem areas in both ance of the peoples of Romania and Bulgaria. countries. There is still time for both countries to Ireland will continue to support both Romania resolve these inadequacies. Provided this is done, and Bulgaria with their preparations for EU the Commission has stated that both Bulgaria and membership. In an EU context, we were involved Romania would be able to join the EU on 1 in approving an increase in the amount of EU January 2007. Furthermore, the accession treaty financial assistance to Bulgaria by an average of provides for action to be taken in sensitive areas, 30% in the period 2004-06. During that time, even after accession, in order to protect the Bulgaria received around \500 million per year, proper functioning of the EU. representing close to 2% of its GDP. The total I welcome the Commission’s conclusion that volume of pre-accession assistance available to the date of 1 January 2007 remains feasible. I am Romania is substantial and increasing, totalling 133 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 134 around \952 million in 2005. This represents a sequent decision by four more member states to very important financial resource for Romania, follow the lead set by Ireland, Sweden and the comprising around 1.4% of its GDP. Approxi- UK and allow free movement of workers as of 1 mately \1.2 billion will be allocated to Romania May 2006. We hope that other member states will in 2006. soon feel able to do the same. We believe it is It is more than 30 years since we joined the EU politically and morally responsible for them to and we have sought to share with our future EU do so. partners the reservoir of knowledge and experi- Following our decision to allow the free move- ence built up over the course of those years in ment of workers, the number of EU-10 nationals this country. To this end, Irish officials have that took up employment in Ireland rose to an advised their counterparts in the acceding coun- estimated 2% of our workforce according to the tries on the optimum use of Structural and EUROSTAT labour force survey and to around Cohesion Funds. Ireland’s bilateral assistance 3% according to the Central Statistics Office. The programme to the accession countries, now in its variation in these two figures can be accounted fifth year, has allocated \1.49 million this year for for by their use of different methodologies. A rise training and assistance, some of which has been of such proportions was especially noticeable in a to the benefit of Bulgaria and Romania. This sup- country like Ireland where net immigration is port was timely and of real benefit to those coun- such a recent phenomenon and a total change for tries. This investment, however, has also been to this country. However, the overall proportion of Ireland’s gain. It is important in nurturing new foreign nationals in our workforce is in line with contacts within those countries, which will help that of other EU countries — Ireland has merely deepen our engagement with them as we work achieved the same level in a shorter time. Most together in future as full members of the enlarged important, we should remember that this inward European Union. migration has helped to boost employment in our Our bilateral relationship with Romania and economy. We continue to enjoy historically low Bulgaria has flourished as both countries have levels of unemployment throughout the advanced towards EU membership. New embass- country. ies were opened in Sofia and Bucharest last year The flow of workers from the EU-10 has and bilateral trade with both has grown impress- helped Ireland sustain our strong growth rates. It ively. For example, trade between Ireland and has done so by alleviating our shortage of skilled Romania increased from less than \5 million in and unskilled labour across a wide range of sec- 1992 to more than \175 million last year. Trade tors, among them, information and communi- between Ireland with Bulgaria has meanwhile cations technologies, health care, construction, multiplied more than eight times since 1994. Last hospitality and engineering. This is borne out by year alone, trade with Romania increased by 75% the European Commission’s findings that Ireland, while that with Bulgaria showed an 11% increase. Sweden and the UK all experienced better The number of Irish tourists travelling to employment performance than those member Bulgaria doubled in 2005 and that trend is set to states that maintained labour restrictions. The continue. It is obvious that as long as our econ- Commission also concluded that workers tend to omy continues to grow and the European Union move to a country because there are job vacanc- continues to expand, the capacity for Irish trade ies there and not simply because they do not need and economic growth to increase on a consistent a work permit. In other words, migration within annual basis is sustainable and advantageous for the EU is demand driven and workers will not us into the future. move unless there is an employment opportunity The figures clearly show that we have made for them and economic wherewithal available to good strides in developing economic ties with them. It is only then that they will consider Bulgaria and Romania, but there is scope for moving. further advances in that direction. I fully expect I have made it clear in earlier Oireachtas the economic opportunities to increase once debates on this legislation that while Ireland these two countries attain full EU membership. I decided in favour of the free movement of am confident that our trade and business interests workers in 2004, this does not prejudge our in both countries will advance further within an decision in regard to Bulgarian and Romanian EU framework. There is every reason to believe workers after their countries’ accession to the that Ireland will continue to prosper in a Euro- European Union. This decision will be made pean Union of 27 member states in the same way closer to the date of accession. It will take into as we have done with each succeeding EU account all relevant considerations, among them accession, including the most recent enlargement the prevailing labour market trends and the in May 2004 when ten new countries joined the intentions of other member states. Union. On 31 May the Minister for Enterprise, Trade Further testimony to the strength and resili- and Employment brought forward an amendment ence of the Irish economy is the fact that we were to the Employment Permits Bill 2005. This is an one of only three countries that fully opened up enabling provision to permit the Minister to exer- our labour market to the EU-10 at the time of cise one of three options with regard to labour their accession. We have welcomed the sub- market access for Bulgarian and Romanian 135 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 136

[Mr. Treacy.] tition, not least from the rapidly growing econom- workers. These three options are as follows: to ies of Asia. grant these nationals access to the labour market The benefits of enlargement have not been without the need to acquire an employment per- confined to the economic domain. EU enlarge- mit; to grant permits without a labour market test ment has created a politically secure and united on foot of a job offer; or to continue to require Europe that benefits its entire citizenry. Europe nationals of these states to obtain employment has become a much better place in which to live permits from the date of accession. than it could ever have been during the Cold War It is easy to fall into the trap of zero-sum think- when much of the Continent lived under the ing when we consider the complexities of econ- shadow of communism or military dictatorship. omic growth. On a very basic level, it seems logi- This experience blighted the lives of two Euro- cal that if one country gains, another must lose pean generations. While Europe has recently out. However, part of the beauty and success of experienced political upheaval in the Balkans, the the European project is that it has shown that EU is now playing a significant role in promoting economic benefit can be widely and consistently peace and stability there. In that region we can spread on a continuous basis. European inte- see how the incentive of EU membership can be gration has not created any losers. It has been a a driving force for greater peace and security. win-win situation for member states and for It is easy nowadays to forget the fears and Europe as a whole, which has enjoyed an uncertainties we faced when we joined the Euro- unrivalled period of peace and prosperity during pean Union more than 30 years ago. Success dulls the 50 years since the signing of the Treaty of the memory and it can make past decisions seem Rome in 1957. more simple and straightforward than they actu- Ireland could be a textbook case in how ally were. Similarly, we tend to gloss over the enlargement can benefit old and new member difficulties with which the EU has had to contend states. When we joined the then European Econ- in past times. omic Community in 1973 we were the poorest We should not allow a rose-tinted view of past Community country. That is a strong statement EU achievements to stop us from putting current and one on which we should all focus. Few would problems and setbacks into their proper perspec- disagree that our membership of the then Euro- tive. The EU has been a success and remains pean Economic Community, later the European essential for Europe’s future. No one has any Union, was essential to our subsequent trans- incentive for turning the clock back. We cannot formation into a successful modern European do that and should never try to do so. Neverthe- economy. The extent of our economic success is less, the EU’s future evolution cannot be taken such that we will soon complete the transition from net beneficiary to net contributor to the EU for granted. There is work to be done in budget. It is our hope and belief that EU mem- determining the EU’s future course. bership will act in a like manner for Bulgaria and Some naysayers took great delight in writing Romania in their future development. off the European Union last year. First, there was The Irish example is not unique. Last month, the rejection of the EU constitution in France and the European Commission presented a paper to the Netherlands and then the June European the European Council which detailed how all Council failed to agree on the European Union’s member states have benefited from the last budget for 2007-13. The fifth enlargement of the enlargement. The paper shows how the stability EU, it was argued, had been misguided, and it provided by accession has helped multiply trade was now bringing down the whole of the EU. and investment between the EU-15 and the EU- However, one year later we can see that such dire 10, creating a win-win situation for all involved. predictions were premature. Last December, the Companies enjoy more investment possibilities, European Council agreed a budgetary package while consumers benefit from more choices and amounting to over \860 billion over a seven-year greater opportunities. period, showing that the enlarged Union has the The European Commission’s paper also budgetary resources to support its key policies. addressed the fear commonly held in the EU-15 There are testing times ahead for the European that companies would choose to relocate to the Union. The challenges include many that are not new member states in search of cheaper labour. confined to Europe, such as the threat of terror- The European Commission concluded, however, ism, the energy crisis and the growing economic that this kind of job displacement in the EU-15 power of China and India. It would be wrong to was very insignificant. Moreover, in many make a casual link between these issues and EU instances outsourcing part of their business to a enlargement. They are separate issues with which new member state helped a company in one of we must contend, irrespective of the direction in the EU-15 to strengthen its competitive edge and which our enlargement policy takes us. subsequently take on more workers. Overall, the It is inevitable that we will turn our attention paper shows that the net effect of the most recent to outstanding commitments as we near com- enlargement is a stronger and more dynamic pletion of the fifth enlargement, the merits of European economy. Together, the EU-25 are which some Europeans understandably question. better equipped to face stiffening global compe- The fifth enlargement has been a considerable 137 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 138 undertaking and we are seeing it through to its approval. In summary, the Minister of State said successful completion. that the greatest evidence for this Bill is that to A key factor in the overall success of the EU- date the enlargement of the European Union has 10 accession was the meticulous preparation been a win-win situation, for the countries joining made before the accession date. Similarly, any the Union and for those such as Ireland which future decisions on EU enlargement will require are already members. The move to allow Bulgaria a comprehensive understanding of all the impli- and Romania in is a positive step forward which cations. The public must be persuaded that any will benefit every citizen of Europe. future expansion of membership will bring with The Minister of State said that we tend to for- it the promise of a further strengthening of the get what Ireland and Europe were like in 1973 European Union and its capacity to deliver real when Ireland joined the then European Econ- benefits to all the citizens of Europe. omic Community. When I joined this House in The EU treaty states that any European coun- 1987, Europe was very different from what it is try that respects the values of democracy, human now. Bulgaria and Romania were tightly sealed rights, and the rule of law may apply for EU satellite states of the old Soviet Union. Bulgaria membership. This does not mean that all Euro- was one of the more cold and frightening pean countries will apply or that their appli- members of the Soviet bloc, which we associated cations will be automatically accepted if they do with KGB espionage, double agents and infil- so. We have started accession negotiations with tration of western countries. Romania was a Croatia. The other countries of the western Balk- somewhat freer country within the old Soviet bloc ans have the perspective of eventual EU mem- but had no democratic structures and was bership although this is still a long way off. Nego- beholden to Moscow. It appeared to have very tiations are also under way with Turkey, although little future to offer its citizens. That changed in it may take a decade or more for it to meet all the autumn and winter of 1989. One of the great the criteria for EU membership. The decision to television images of that time was the upheaval in offer a membership perspective to any other Romania, the overthrow of the Communist Party European country must be taken unanimously by dictatorship there, and the brutal and swift end all member states. meted out to those leaders. Another factor bearing on the Union’s enlarge- We must look to the future. Every citizen of ment strategy is the institutional capability of the Bulgaria and Romania is eagerly looking forward Union to handle further expansion. The Euro- to joining the larger European family because the pean Union started out with six members. A European Union is the biggest political success Union with more than four times the original story of the past 100 years. Only the integration membership would need to undergo structural of the United States can match the European change to continue to function effectively. To Union’s economic and political success. I look achieve this the governments of the member forward to these two extra countries joining the states agreed the EU constitution after compre- club and benefiting from the European project as hensive negotiations. The Government’s position we will benefit from their membership. is that the provisions of the EU constitution The Minister outlined certain issues that the remain the best option for the Union as it Bulgarian and Romanian administrations need to addresses the challenges of the future including address before being allowed to join the Union. further enlargement. From a pragmatic point of There must be strict rules and guidelines for view, we see no alternative structure that would accession. No matter how strongly we wish them command greater support from the EU member to join, the internal politics and economics in states. those countries must reach a certain standard For now our priority is to complete the fifth before they can join. Their governments need to enlargement of the Union and to welcome assure us that they will tackle the problems with Bulgaria and Romania into it. We have a certain criminal elements there domestically, and responsibility to ratify the accession treaty by the in conjunction with their future European part- end of this year. This deadline applies regardless ners. We need further evidence that democratic of whether the date of accession is 1 January 2007 institutions have bedded down locally and or a year later. The Bill before the House today nationally in those two countries which come enables Ireland to ratify the treaty and will help from a tradition of centralised dictatorship where pave the way for a Union of 27 members. democracy cannot flower overnight. After 15 or Bulgaria and Romania have made remarkable 16 years of democratic progress in the old Soviet progress towards full EU membership. Ireland central and eastern Europe we must try to see looks forward to welcoming them as full partners that democratic structures are well established in the Union. We are confident that both coun- there. tries will benefit from membership and will con- We also need further reassurance that all tribute to the Union as Ireland has done over the impediments to market economies in Bulgaria past 33 years. and Romania are dealt with and that fully fledged market economies are in place. The market econ- Mr. Bradford: I welcome the Minister of State omy structure has been the linchpin of the politi- to the House, and the Bill he brings for our cal, economic and social development of the 139 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 140

[Mr. Bradford.] ceed. The statistics on employment levels in the European Union of families. We must also ensure Minister of State’s contribution knock on the that the two countries will show the ability to take head the argument made by some small-minded on the obligations of membership including people that the flow of immigrant workers into adherence to the aims of political, economic and Ireland is bad for the country. Nothing could be monetary union. No doubt they will aspire to and further from the truth. These people are part of meet those criteria; the sooner the better. the new Ireland. They are helping to build our The Minister is aware we have had numerous economy and they contribute in various sectors debates in this House over the past two or three and industries. Without them our economic years on the future enlargement policy of the growth would not be as strong. European Union. A significant min- The more we enlarge the European Union and 4 o’clock ority of people are concerned about the European economic club, the better for all of the pace of enlargement and wonder us and that is the reason I welcome this legis- where it will stop. They wonder how far east we lation. I hope that at the earliest possible date can go in building the EU. I hope we will con- Bulgaria and Romania will be deemed to have tinue to be ambitious and reach out to try to matched the necessary criteria. The criteria may spread the politics of democracy, social inclusion be difficult, but that is as it should be. The two and economic freedom that the Union is all countries are moving in the right direction and about. I agree with the Minister of State that as offer a beacon of hope to other countries con- the Union expands we must ensure the structures sidering accession to the Union. I welcome the are in place to allow it to operate fully. legislation and look forward to seeing Bulgaria I acknowledge disappointment that the Euro- and Romania as part of the Union. It is tremen- pean constitution has not proceeded as we would dous that countries that were under the cosh of have wished. Much work was done in the House the Soviet empire for so long and whose people and by the Government internationally to try and could see no future for themselves can now move put the constitution in place. However, the refer- forward with us. They are moving towards a more endum results in a number of countries appear to open, democratic and fair society. I look forward have put the “slow” sign on the project. We must recognise, however, that the European consti- to the day they join the Union. Their accession tution has been ratified in a number of countries. will be good for Ireland, Romania, Bulgaria and In the majority of countries where a decision all of Europe. needed to be taken, a decision was taken in fav- our of it. I hope we continue to push forward the Mr. Mooney: I welcome the Minister of State, European project. a committed European, who comes, like myself, Are we still going through the famous period from a part of the country that has benefited of reflection whereby we are supposed to reflect greatly from European subsidies and which now on where we are going and on how and when we lives under a new dispensation. It would be no will get there? It has been in place for some time harm to put in a little plug for the BMW region and we need to mark progress and examine the here. The Government is vigorously defending its current state of play. Too much has been invested record against naysayers who suggest the region in the concept of the new constitution for Europe is losing out, but those of us who come from the to allow the issue stay on the backburner. If the area will continue to monitor progress and ensure two new countries are to join and there is to be we get our fair share. further expansion, we need a newer type of politi- To present a scenario, I feel a little like a client cal and administrative structure to run the show. in his dealings with a representative of the oldest The European constitution was charting the way profession in the world in that the substantive forward in that regard and it is, therefore, issue has already been agreed and the only haggle important that we keep that issue at the core of is over the price. In terms of this legislation we our debate. have essentially been presented with a fait accom- There was almost unanimous agreement in the pli. The Government has taken a decision in line House and broad political agreement in the coun- with several other member states that it will sup- try in favour of a European constitution. That port the accession of Bulgaria and Romania, the support needs to be reiterated and we need to Da´il has already approved this legislation and it declare our ongoing desire for progress on the is now our turn. However, this is also an oppor- issue. The enlargement of the Union from 15 to tunity for Members of this House to express 25 countries is not the end of the road as far as their opinion. project Europe is concerned and nor should the I do not totally share the rosy picture enlargement from 25 to 27 be the end. The future presented, although it was tempered with realism of a number of other countries will be best by the Minister of State. Listening to my friend secured through membership of the European and colleague Senator Bradford, I was beginning Union. to think enlargement of the European Union is The Minister of State spoke about a win-win the greatest thing since the sliced pan, but it raises situation. From the economic and political per- serious issues and problems that must be spective, the bigger the club, the better we all suc- addressed. 141 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 142

The Minister of State gave a number of reasons try to get other countries on board in this regard. as to why we should support the legislation. He I strongly supported the Government’s original said, “The public will have to be persuaded that decision to give workers from the accession states any future expansion of membership will bring unfettered access to our labour markets. The with it the promise of a further strengthening of benefits of that decision, which was also taken by the EU and of its capacity to deliver real benefits the Governments in the UK and Sweden, are to European citizens”. This statement sums up there for all to see. the situation because it describes exactly the We are talking about an economy and about deliberations taking place whenever the people economic issues, but a social issue that is of Europe discuss its future. This situation was presenting real challenges has not yet been articulated and reflected not only in the results of addressed. The challenges in question have to be the Dutch and French referenda on the consti- faced by Irish society, which is changing so tutional treaty but in the fact that member states dramatically that we are finding it hard to take a — to respond in a limited degree to Senator breath and to keep pace, and also across Europe. Bradford’s query about the period of reflection I have not heard anything from the Commission — cannot get together on the issue. or any other part of the EU concept that helps to They know there is a real problem with regard address these issues. This matter does not just to the treaty. The most recent statement to relate to the demographic changes which are tak- emerge from the Council of Ministers is to the ing place in Ireland, or to the large number of effect that they want to ditch the term “constitu- foreign nationals who are working here. It also tional treaty”. It would be right to ditch it because relates to social upheaval in France, for example, it sold a particular perception of Europe that which is a serious issue, and to issues which are scared people. It scared them into thinking some affecting the EU, such as immigration and the Big Brother was operating in Brussels and Stras- threat of terrorism. bourg who would make their decisions for them. I compliment the Minister of State on his Despite the best efforts of the political elite in speech, which pushed all the buttons. I do not Europe — Commissioners, Members of the Euro- think anything was left out of his presentation, pean Parliament, national governments and although it seemed to me that he glossed over Members of Parliaments in member states — the some of the challenges and difficulties we face. general public does not seem to be convinced the route the EU has taken and the manner in which He accentuated some of the more positive aspects it has done so, especially with enlargement, will of this matter, although it is in our nature as poli- bring real benefits. I will not question in any way ticians to do so. I would like to think we could the European Commission’s statistics, which have have an ongoing debate about some other issues. been quoted by the Minister of State. The only It is not just a question of “the economy, stupid” response I have to the statistics is “Well they — it is also a question of the type of society that would say that, wouldn’t they?” the people of this country want. We continue to It seems to me that those who want to expand have a sovereign right to make decisions of that the EU for ever and a day are engaging in a big nature, although it is being eroded on a daily sell. That is fine from an economic perspective, basis. as it is absolutely clear that this country is If other EU member states rapidly adopt the benefitting. However, it is salutary to reflect on labour policies which have been adopted by the Taoiseach’s reminder, which was reiterated Ireland, the UK and Sweden, we might be able to by the Minister of State in this House today, that have a better period of adjustment. Polish people the Government has not yet taken a decision on living in Warsaw, Krakow or Poznan will not whether it will give the same carte blanche to want to travel halfway across Europe to Ireland workers from Bulgaria and Romania, which are if they can get jobs on their doorstep in Germany. about to accede to the EU, as it has already given The Germans understand that, which is why they to workers from the ten countries which were have closed their borders for seven years. There involved in the 2004 enlargement. may be a levelling out in the future. The average percentage of the population of I accept that the arrival of workers from the this country that comprises citizens of the accession states has been good for this country. enlargement states is higher than in any other The most recent report on the alleged displace- country. Approximately 9% of the working popu- ment of Irish workers, to which the Minister of lation of Ireland is from those countries, which is State referred, claimed that the level of such dis- an extraordinarily high figure. It is quite possible placement has been minimal. However, my anec- that the extent of such immigration will start to dotal experience, which is shared by many people level off, like waves lapping against the coastline from other parts of the country, is that some dis- as the tide changes. The level of such arrivals will placement of Irish workers has taken place. I recede as soon as other EU member states start know of qualified Irish professionals in the var- to change their labour policies, which is some- ious crafts who have left this country to go to thing that the Minister has strenuously and work in England. While there is anecdotal evi- robustly demanded at meetings of the Council of dence of that nature, the statistics indicate that Ministers. The Government’s stated policy is to everything is hunky-dory, everything is fine, the 143 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 144

[Mr. Mooney.] telling that to those attending the World Cup who country is booming and there are no problems are flying their flags and supporting their coun- with our rate of economic growth. tries. If football fans are allowed to demonstrate I do not want to sound like a prophet of doom. a sense of patriotism and nationalism and be I reiterate my earlier comment that I recognise proud of who they are, I do not see why we and acknowledge the immense benefits which should apologise for doing likewise. Of course we were brought to this country by the most recent should embrace our multicultural society, but I enlargement of the EU. However, I am seriously would not like this country’s Irishness to be some- concerned about Bulgaria and Romania. This how diluted in a mad rush towards the Holy Grail matter has been discussed by the Minister of of economic success. Everything should not be State, Deputy Treacy, and Senator Bradford. I about money. am sure other speakers will do the same. There I understand why we are scared that we will go is a growing gap between the opinions of the back to what we were less than a generation ago. ruling EU elite — the European Commission and We want to ensure that what we have, we hold, the European Parliament — and everybody else and that we progress further, but there is a price in this regard. Those who are in favour of further to be paid. I would like the Government to con- enlargement argue that everything is fine and sider the manner in which we manage our econ- everything will be wonderful. There is concern omy and our society as a whole in light of the across Europe about the accelerated rate of EU new environment in which we find ourselves. It is enlargement. not just an issue for the Government — society There is political instability in Bulgaria, in general should see it as a challenge rather than whether we like it or not. Not only have there as a disadvantage. We are still trying to grapple been inconclusive election results, but the with the dramatic changes which have taken place Government that is currently in place could fall over the last seven or eight years. at any time. That instability has allowed criminal I will conclude by speaking about my recent elements to influence the commercial and politi- visit to the Hague. A Dutch historian told me that cal life of Bulgaria. Irish investors who are buying in the 16th century, when approximately 175,000 property in Bulgaria off the plans should take people were living in Amsterdam, over 300 artists note of my comments in this regard. with patrons were flourishing there. Holland, Much greater progress has been made in which is one of the regions of the present-day Romania. I have been one of the most bitter crit- Netherlands, was one of the most affluent parts ics of Romania, which I have had the pleasure of of Europe at the time. It had a developed infra- visiting on four or five occasions as a member of structure, including a water and sewerage scheme the Council of Europe. I have observed the quite and a built environment, more than 300 years traumatic changes which have taken place there. ago. We are trying to achieve within ten years Senator Bradford rightly said that Romania was what it has taken the Netherlands 300 years to a totalitarian and authoritarian dictatorship that achieve. That puts the challenge faced by society, was ruled with an iron fist by Ceaucescu. When as it tries to come to terms with all these realities, he was done away with by his own political elite into perspective for me. in 1989, clones of him ran the country for the next I do not suggest that we should not continue ten or 12 years. There was very little fundamen- the enlargement process by embracing and wel- tal change. coming countries which want to gain membership My experience of Romania in the early part of of the European Union. I am totally supportive this century was that nothing had changed in rural of that process, in principle, but I do not want us areas, whatever about Bucharest. A new Pres- to lose sight of the fact that society is changing ident has taken power in recent years, following rapidly. It is not just about increasing growth a change of Government and political dynamic, rates and keeping unemployment levels down. It which has focused the minds of the Romanian is about the wider question of what kind of political elite, especially in its relationship with society we want within the European Union the EU and the enlargement commission. family. Romania is going a long way towards addressing many of the fundamental issues. It has yet to deal Dr. Henry: I welcome the Minister of State, with the fundamental question of how it intends Deputy Treacy, to the House and I also welcome to put in place structures to distribute agricultural the European Communities (Amendment) Bill subsidies. Those of us who know about the 2006. I am glad the Minister of State mentioned importance of such subsidies to the Irish economy the former Taoiseach, Charles Haughey, who over many decades consider that the fact that the died yesterday. It is right that he acknowledged great bulk of the Romanian economy continues the late Mr. Haughey’s contribution to the Euro- to be based on agriculture is a fundamental prob- pean project and his enthusiasm for it because lem that has not been satisfactorily addressed. Mr. Haughey put a huge effort into the meeting I spoke earlier about society. I do not want to of the Council of Europe that took place in 1990. give the impression that I am somehow being par- We are all enthusiastic about the European ochial in my views. People who say that national- project. While Senator Mooney is quite right to ism is “the last refuge of a scoundrel” should try warn about the difficulties we face, I still believe 145 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 146 that people In Ireland want to go forward. In the One cannot enter a shop in Dublin without past 15 years, one of the best things to have hap- encountering Poles, Latvians or Lithuanians, all pened to Ireland has been the enormous decrease of whom make a contribution to society. I feel in unemployment. The steps taken by the rather sorry for the Baltic states in particular with Government, in common with the Swedish and regard to the brain drain from those countries. British Governments to allow the free movement Earlier this year, I visited Latvia where there is of workers on the accession of the ten countries some dismay that it is losing people in their 20s from the Baltic and eastern Europe, has not in particular, many of whom are well qualified. caused any further trouble with regard to employ- They are just the sort of people who would come ment. The unemployment rate has remained vir- here, form relationships with Irish people and tually the same, and those workers have been of settle here. I was told that some villages and great benefit to the economy. towns in Latvia have lost a considerable number I am glad the Minister of State also noted that of people to Ireland in particular, as well as to the benefits of being within Europe have not sim- Sweden. This has caused them the kind of distress ply been economic. When one thinks of Europe which used to be found here when so many of this time 70 years ago and recalls what was hap- our young people went to the United States and pening in Germany, it is incredibly important that the United Kingdom. it is, as the Minister of State noted, politically It would be nice if some of the young people secure and united. The European Union has been in question came here, improved their potential enormously beneficial for Ireland, in terms of the for careers in Latvia, Lithuania, Poland and so establishment of a social and psychological frame- forth, and returned. Members must hope there work of such dimensions that I cannot envisage it will be good economic progress in those countries going backwards. in order that such people will not always be Moreover, the social problems which have obliged to come to Ireland to improve their arisen in some other member states of the Euro- situation and that they will be able to return to pean Union have not been due to migration of their countries. workers within the Union. In general, such prob- Today, the House is addressing the issue of the lems appear to have arisen in respect of non-EU inclusion of Romania and Bulgaria. In recent workers and immigrants in some specific regions, times, both countries have experienced terrible particularly if such people have been ghettoised. troubles. I visited Romania when Ceaucescu was However, there are non-EU workers in some in charge and it was utterly appalling. Women parts of Ireland. Some, such as the Brazilian meat suffered dreadfully and all were obliged, if pos- workers in Gort, are concentrated in particular sible, to produce approximately five children. The locations. They have successfully integrated and maternal mortality rate was shocking and, as a Members will have taken pride in listening to hangover from those times, Romania’s perinatal them talk about the Brazilian team in a recent mortality rate is still the worst in Europe. As radio broadcast. Hence, Irish people should be as Members know only too well, enormous numbers optimistic as possible because if one asserts that of children were left in orphanages by married a particular matter will become a problem, it will couple who could not afford to bring them up. do so rapidly. The parents were obliged to have the children, To date, the instincts of all Governments with who ended up in orphanages. It was a most regard to the European Union have been correct. pathetic situation. On the arrival of Romanian and Bulgarian However, the former kingdom of Romania was workers, Ireland should continue in the manner once very prosperous. Romanians are bitter in which it has treated workers heretofore. While about what they feel was the theft of many of I realise this issue must be examined closer to the their assets by the Soviet Union. One hopes the date of accession, I hope the Irish economy will situation will improve again. I visited Romania be performing just as well then as it is at present. subsequently and, like Senator Mooney, I formed However, I ask the Minister of State to recon- the impression that matters were improving sider the exclusion of such workers from social dramatically. welfare entitlements for two years. Apparently, In ancient times, Bulgaria was the seat of the some problems are being encountered and a ancient kingdom of Thrace, which rivalled small number have ended up homeless. Members Greece with its culture and wealth. It is important will not wish to see such a development. They that Members should remember its background. may recall an appalling situation involving a I am sure that by the time Bulgaria enters the young Ukrainian woman in Northern Ireland last Union, it will have made the requisite efforts in winter who, while sleeping out of doors, contrac- respect of organised crime which apparently is ted such severe frostbite that she lost her feet. I still a serious problem there. Recently, I was would be grateful if the Minister of State were to depressed to hear a Bulgarian archaeologist talk- ask the Minister for Social and Family Affairs to ing about how the legislation regarding looting re-examine the situation regarding social welfare from ancient historic sites in Bulgaria is so cum- entitlements. bersome and slow, that looters always get to such Most people who have come to Ireland from sites before the archaeologists. Moreover, the the Baltic states and eastern Europe are at work. gold of Thrace is coming onto the international 147 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 148

[Dr. Henry.] Mr. Dardis: Cuirim fa´ilte roimh an Aire Sta´it. market at a most unacceptable rate, given that I welcome his speech because, while the Bill is one is not allowed to export such wonderful items straightforward and brief, significant questions of heritage from the country at present. This is an are associated with it. To his credit the Minister important issue which must be considered. has this afternoon addressed some of those wider People from both countries already work in questions on the European project, its achieve- Ireland, some of whom are professionals. One ments and its direction. It is appropriate for us to such person, who is a colleague of mine in the consider enlargement, the adoption of the consti- Rotunda Hospital, has given great service to this tutional treaty and the entire EU project in the State in a medical capacity for many years. context of this Bill. The Bill is important and I Members must remember that musicians in welcome it. Ireland needs to ratify it for treaty orchestras, choirs and so forth have also made an purposes. I welcome the prospect of the accession important contribution to this State. of Bulgaria and Romania to the EU. It will be of The Minister of State noted that the Govern- benefit, as has been the accession of the most ment will consider the situation regarding the recent member states. I and my party, the Pro- freedom of movement of workers closer to the gressive Democrats, have always been enthusiasts date of accession, which seems reasonable. about the European project, although, in com- However, it is important that employers who mon with many, not uncritical of it. Our country’s bring people to Ireland with work permits should interests are best served by taking a full and con- try to make more of an effort to ensure that such structive role in the EU and its institutions. In the workers learn English. Some people get jobs in past it has been too much of a one-way street. In which they learn very little English, which keeps the early days we looked to what the EU could them isolated. This should be taken on board by give us without thinking about what we could give back or our responsibilities regarding the assist- places of employment. Some hospitals have tried ance we received. That has changed for the to do so in respect of nurses from abroad who are better. Ireland’s historical orientation since we filling in the serious nursing shortage. They try to joined the EU has been to be full and construc- guarantee that such nurses get English classes, to tive members. The Minister referred to the role ensure they do not simply speak English at a of the late former Taoiseach, Mr. Charles basic level but can also address the concerns of Haughey, in 1990. There have been examples patients and their relatives. It is important for where the country, in its Presidency, has played a them to make progress in this regard. key role in the enlargement of the Community The situation for older women coming to this and progressing accession of the new member country from abroad who do not work outside states. There have been one or two logjams when, the home can also be difficult. Decades ago, when but for the role of Irish Governments and officials I worked in America, I recall encountering Hung- involved in the EU Presidencies, the project arian and Polish women who had been in the would not have proceeded with the speed it did. country for decades and who still could not speak That must be recognised. English. If this happens here, we could also have My party has always resolved to work to ensure women in the home who are unable to become Ireland is an active and enthusiastic contributor part of society. to development of EU policies and democratic At the end of his speech, the Minister of State structures. The country has played its part with mentioned that there was consternation last year positive benefits both for us and the EU. Non- on foot of the refusal of two countries to ratify member states have observed the experience of the proposed European constitution. I was not Ireland and other states and have been keen to surprised, as it was so complicated. It was quite join up. Our recent economic success has been difficult to understand, even though much of it an inspiration to newer member states. I was in was discussed in this House. I will refer to the Estonia recently with members of the Committee French vote in particular. One man in Paris told on European Affairs and they were enthused and me that taxi drivers had not been allowed an interested, as were the people of the Czech increase in fares in February last year, which was Republic, at how Ireland had benefited so much very important. Moreover, while driving across from the EU. I was in Tallinn, Estonia on 9 France at the time, I saw a big placard propped September 2001 and it is extraordinary to see the up against a roll of hay in a field which read, “Vo- transformation of that country in the short period tez non a` l’EU de Tony Blair”. Can the Minister since then. It is much more self-confident and work that out? I could not. The French have their open and the fabric of the country has improved own reasons for voting no. It is amazing how we in terms of housing and public buildings. It is weathered it. It was predicted that terrible con- obvious that money has gone into the country and fusion would strike the EU but everything has it has been beneficial. gone on smoothly and I am sure we will address Apart from some of the benefits the Minister these issues, as the Minister said, in the future. I mentioned, enlargement benefits Ireland as a wish him luck with this piece of legislation, which trading country and one of the most open econ- will benefit the Irish, Bulgarians, Romanians and omies in the world by providing a bigger market the EU. for our products. Enlargement has been about 149 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 150 trade, among other matters such as democracy. should be accepted and accommodated in the Ireland has been at the centre of the European country. That is the lesson from France. The project since our accession in 1973, and especially problem was not that the workers came, but that since the fall of communism, which has been there was no attempt to integrate them into the referred to. These events have precipitated the country and the ghettos were allowed to develop scenario where Romania and Bulgaria, 25 years to the north of Paris and elsewhere. later, are approaching accession to the EU. We I am glad Romania and Bulgaria are continuing have played a significant role in the enlargement their democratic and economic transformation process, as I stated earlier when I referred to and we have been alerted to the intention to what took place in 1990. focus on some important areas where further The recent Irish Presidency accepted ten new reform is required. That cannot be stressed member states and we must remain open to enough. The EU has to deal comprehensively enlargement. The benefits, such as trade, have with citizens’ concerns. That is the lesson from accrued and stability, which has been referred to, the constitutional treaty and enlargement and in has also been important. The EU was built from that respect I agree with Senator Mooney, that in the ruins of Second World War Europe, from the past there has not been enough regard for the which Ireland was removed. From that catas- concerns of the citizens. trophe came the determination embodied in There are serious concerns regarding crime and people such as Mr. Robert Schumann, Mr. Paul- contract killings in Bulgaria. There have been Henri Spaak, Mr. Konrad Adenauer and Mr. media reports of corruption among the judiciary, Jean Monet to ensure it could not happen again. failure to sentence convicted criminals and It is an extraordinary achievement that after cen- alleged bribery at high levels. These are serious turies of conflict between European states we allegations. Then there is the question of the have come to the point of such stability. rights of people with disabilities. Senator Henry The Minister has stated that the accession of has spoken here about children in orphanages neither country is in doubt and the question is and I have a friend who has first-hand experience when rather than if. He mentioned some of the of these matters and I know it is an appalling red-flag issues, and it is encouraging to see that situation. Irish agencies are doing their best to they are reducing. There is a perception that improve matters but improvements must be made accession is a casual process and that membership in standards before accession can take place is automatic but nothing could be further from seamlessly and flawlessly. It is easy to list these the truth. Countries must overcome many hurdles issues and embed them in the minds of citizens before becoming members. There are criteria on but they cannot be disregarded. democratic structures, respect for human rights The Commission has called on Bulgaria to take and rule of law among others. There is also the urgent action to obtain tangible results in question of the acquis communautaire, a large investigating and prosecuting organised crime body of work to which the applicant countries networks and has also called for a more efficient must accede before they can become members. It and systematic interpretation of laws in the fight is not a casual decision made by the leader of a against fraud and corruption. If Bulgaria fails to country with the agreement of the people. The do these things the Commission may delay European Council will decide, based on the accepting Bulgaria as a full member which would recommendation from the European Com- send a very unfortunate message to people in mission, which in turn will base its findings on the that country. comprehensive monitoring reports of Bulgaria The government of Romania has had some and Romania, whether the countries are ready for positive results in fighting high level corruption accession and when it should take place. and reforming the judiciary, though some prob- The question of workers has been raised and lems remain regarding a computerised tax collec- no decision has been made on Bulgarian and tion system, food safety and setting up agencies Romanian workers having access to this country to pay and monitor EU farm subsidies, something on accession. There was a positive response in that will resonate with us. Overall, commentators Estonia, the Czech Republic and elsewhere when have said that institutional reform standards are Ireland decided to take workers from day one. comparable in Bulgaria and Romania but that the Selfish interests were involved. The Irish econ- committed attitude of the Romanian Govern- omy needed workers. Senator Mooney was incor- ment is what makes the difference. From that rect to indicate that we have been overrun by point of view Romania has an advantage. immigrants. The numbers are modest by Euro- Both countries have some way to go. Along pean standards in proportionate terms. The speed with the Soviet Union, Albania, Czechoslovakia, with which it has happened has caused some diffi- East Germany, Hungary and Poland they were culties. It would be ironic and wrong if, given our blighted because of post-war divisions, the Cold experience of building some of the great coun- War and the flaws of communism. Membership tries such as the US, we could not understand that of the EU has signalled the final throwing-off of when we are successful people want to come here the shackles of the past for other former eastern and contribute to our success. They should be bloc states and the accession of Bulgaria will embraced and their culture, religion and ethnicity make complete the enlargement of the EU since 151 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 152

[Mr. Dardis.] of migrant workers from eastern Europe. This is the fall of the Iron Curtain. It is noticeable that a positive development, but one which has hap- Estonia has many young people at senior levels pened with considerable speed causing concern in of the civil service and public administration some quarters. which has transformed the country and brought In Roscrea, approximately 20% of the town’s great energy to the institutions of state which population is from eastern Europe, which creates were moribund under the communist regime. an extraordinary situation. We are all used to The Minister of State made reference to the meeting such workers on a regular basis, partic- relocation of labour and the perception that there ularly from Poland, but also Latvia, Lithuania will be a move eastwards to the lower labour-cost and other countries, in shops, on farms, in factor- economies. The key to stopping this is pro- ies and some people have them come work in ductivity. This may not apply to traditional manu- their homes. I did a small survey in Nenagh to facturing industries which are difficult to stop establish where eastern European workers were from relocating. In high-tech industry we can working, for the most part. I discovered that what offer high productivity. I met a senior executive was occurring was not displacement, but rather from Intel a few years ago, by chance, while on replacement. Most workers were based in factor- holidays and I asked him why the company had ies which, in some cases, attract an unskilled not relocated to China or elsewhere. He said it workforce. In other cases workers with specific was because the cost per unit is lower in Ireland skills are needed, such as butchers and glass cut- than it would be in an economy with low-cost ters, though these workers were coming here labour because productivity is so high here. This before the expansion of the EU. relates to competitiveness and is something on Since 2004 those sectors of the economy that which the Government must focus. have experienced a labour shortage due to Irish In progressing from six member states to 25, workers moving on have often recruited eastern the EU has shown itself capable of dealing with European workers. Irish workers may move to institutional pressures. I therefore hope we will the computer sector, like Dell in Limerick which soon welcome Bulgaria and Romania to the draws workers from north Tipperary and European Union and that they will contribute as Limerick, leaving vacancies in the less skilled and much as I hope we have over the past 30 years. lower paid areas. As a result there are clusters of eastern European workers in the lower paid Ms O’Meara: I welcome the Minister of State sectors, which is a cause for concern. Only time to the House and I also welcome this legislation will tell how they integrate or whether they do as on which we are all in agreement. Membership of the EU has been of huge benefit to Ireland at many Irish did and spend a short period of time every level. We have reflected on the career of abroad to build resources or send resources the former Taoiseach Charles Haughey over the home. They may come as young workers and past few days and considered, in that light, how then go back when they get married and have life in Ireland has changed since the 1960s and children. Otherwise, they may stay and integrate in a similar way one can review how Ireland has fully. Only time will tell if that will happen. It is changed since we joined the EU. an issue which is here to stay as long as our econ- The support we received from our friends and omic prosperity continues. We should recognise colleagues in the EU has been a major factor in that these people are contributing to and are part Ireland’s economic and social transformation. of our continuing economic prosperity. Ireland is a very good example of a small country We should not fool ourselves on the future of that joined the EU poor and disadvantaged in the great European project. We know the prob- many ways, but took advantage of what invest- lems which have occurred with the failure to get ment was available, especially investment in edu- the necessary level of support for the proposed cation, infrastructure and agriculture and used it European constitution. Significant lessons should to its advantage. We should be grateful to those be learned from this, particularly by people like who invented the concept of the EU initially and us, who may at some level take support for the were so generous in extending the hand of sup- European Union for granted because we clearly port and friendship to us. There is something to see what it is. Other people do not. repaid and there is an onus on us to be generous Many of our citizens do not see for themselves to new entrants to the EU and ensure countries a benefit, and they may see the project as a disad- that meet the entry requirements are given full vantage. This may be linked to factors which are support by the existing member states. This not caused by or even directly associated with cannot be seen as an elite club. actions of the European Union. We are all poli- Following the fall of communism the EU has ticians and we know that when people are voting, opened up to and embraced former eastern Euro- many factors come into play. There is clearly pean states and this has advanced the cause of much work to be done to ensure that the man peace and prosperity, and the world, to a great and woman in the street — to use a cliche´ — are degree. This has been a great opportunity and I constantly fully informed on what the European believe it will show itself to have been a success. project is about and the associated benefits for From Ireland’s perspective this means the arrival them. 153 European Communities (Amendment) 14 June 2006. Bill 2006: Second Stage 154

The benefits are not just economic, although characterised by stability, prudent fiscal policy we have spoken much about them. Other benefits and growth. The main economic indicators include legal frameworks. It has often been stated include an average annual GDP growth of in this House that certain rights have been put between 5% and 6%, low inflation and a fiscal into Irish law, particularly relating to women, target of 3% GDP surplus in 2006. In line with which would not have come about if it had not the strong economic growth, employment grew been for the EU showing the way. It would have by 2% in 2005. Trade expanded with an acceler- overcome resistance which may have naturally ation of volume growth to 18.4% for exports and been there. That is also to be applauded. 26% for imports, due mainly to strong imports of These legal frameworks, the fundamental basis investment goods. The trade deficit is balanced of equal human rights and the European social by a surplus in the service balance, mainly in charter, are not fully seen as the extraordinarily tourism. positive and beneficial documents which they are With regard to restructuring and liberalisation, for all the citizens of Europe. For that to be avail- 90% of all assets earmarked for privatisation able to a wider population is an action which have been privatised. The financial services sector should be supported and applauded. has been completely privatised and further pro- Like others, I would have concerns regarding gress has been made in the liberalisation and Romania and Bulgaria. The Romanian popu- restructuring of network industries. The railway lation has a dreadful reputation across Europe. I liberalisation is well advanced and concessions remember going to Germany as a student and for the operation and upgrading of ports and air- people would talk of Romanians as if they were ports are being granted to private operators. The dirt. Some people really hated them. That is opening up of gas and electricity markets con- dreadful to observe. The Romanian Government tinues in line with the envisaged timetables. In will have to overcome many such obstacles. the telecommunications sector, a third mobile This is indicative of how we must take a long- operator started services in November 2005, term view. Participation in the European Union improving the conditions for effective com- accelerates the process towards a standard to petition. which I hope the Romanian people would aspire. In its monitoring report of 16 May 2006, the Through participation in the European Union, Commission concluded that Bulgaria is a func- these people are supported in raising legal, tioning market economy which has maintained governmental and environmental standards, for macro-economic stability and advanced structural example, just as we have had to do ourselves. The reforms. It indicated that the continuation of cur- support exists to do this, and participation in the rent reforms should enable it to cope with the European Union allows countries such as competitive pressures and market forces within Romania to do it. A carrot and stick approach the European Union and accomplish the target of and a balancing act must be properly executed. accession to the European Union on 1 January I congratulate the Minister of State on his work 2007 by resolving outstanding deficits. in this regard and commend him on his commit- Bulgaria accepted the recommendations and ment to this project. We have shown we have a the Bulgarian Government discussed in a con- significant role to play which includes leadership. structive manner how to address remaining chal- As we have risen to our current position in the lenges and consolidate ongoing reforms, partic- European Union, we have much more to contrib- ularly in the so-called red flag areas identified in ute than we had in the past. That is indicative of the Commission’s report. On 8 June the the possibilities and potential of the European Bulgarian Government adopted an action plan project. comprising concrete measures and associated timetables. It intensified efforts to achieve tan- Mr. Lydon: When the Minister of State began gible results to fully prepare Bulgaria for his contribution he referred to the late Mr. accession. The measures include consolidation of Haughey, God rest his soul, who was a staunch the framework for combating corruption and advocate of Ireland’s participation in the Euro- organised crime, further fine-tuning of the system pean project. He was a prince among men when to prevent money laundering and strengthening it came to the European project. Mr. Haughey of financial controls for future use of the Struc- was sometimes referred to as Machiavellian. If tural and Cohesion Funds. Mr. Haughey was a prince, he was not a Machia- In the area of transparency, the recent process vellian prince, but was almost certainly a Medici. of full publication of the declaration of interests Many people have referred to the accession of and assets by members of parliament, Ministers, Bulgaria and Romania, stressing the negative high-level public servants and magistrates and aspects. I would like to refer to some of the posi- political parties has begun. It is shortly expected tive aspects. The Minister of State has indicated that the current system for public access to the that the number of red flag issues has reduced data will be significantly enhanced. from 16 to six. The accession incentive has A unit for the fight against corruption and resulted in a raft of reforms in Bulgaria. organised crime, directly subordinated to the The Bulgarian economy has been completely prosecutor general was set up with specialised transformed with market-based principles and is prosecutors to deal with specific cases. The struc- 155 Use of Irish Airports: 14 June 2006. Motion 156

[Mr. Lydon.] — the recent publication of the Council of ture of the Ministry of the Interior was signifi- Europe Report on CIA Rendition cantly improved, avoiding any overlap between Flights; and various divisions and services. — the confusion surrounding the legal status The intensive work of the prosecutor’s office of any Garda attempt to investigate the and the Ministry of the Interior has produced nature of these flights, concrete results evidenced in the charges the prosecutor’s office recently raised against sym- hereby calls for the establishment of the select bolic figures in the criminal fraternity. There is committee on the use of Irish airports to inves- also sustained progress in prosecuting cases of tigate the use of Shannon by American military corruption at all levels. The independent criminal authorities, especially the CIA, for which pre- assets commission was strengthened and recently liminary preparatory meetings have already brought several cases to the respective courts, been held. thus targeting the economic background of the persons involved in criminal activities. This is an important motion. It is a subject I have The co-ordination mechanism for the fight pursued for a considerable time. I was probably against money laundering has been enhanced. A the first person in either House to raise this issue. specialised anti-money laundering unit was set up I have with me a selection of what I stated on the at the prosecutor’s office. Further strengthening matter during the past few years. I am sorry to of the competent structures is envisaged, aimed at state they have been proved right. I am partic- better co-ordination in tackling these challenges. ularly pleased my colleague, Senator Henry, will With regard to the judiciary, following the third second the motion because on a notable occasion major constitutional amendment early in 2006 she extracted from the Minister for Justice, and the overall enhancement of the legal frame- Equality and Law Reform a clear statement work, work is now concentrated on strategic about what the attitude of the Government is on assessment of results and identification of any any process akin to extraordinary rendition. needs for further fine-tuning of the system. The One of the horrifying things that has happened enhancements included amendments to the penal during the course of the Iraq war is the constant procedure code and the civil procedure code, as debasement of language, such as the phrase “ex- well as the adoption of the new administrative traordinary rendition”, “shake and bake attacks” procedure code. in which people are incinerated by illegal phos- With regard to the functioning of the courts, phorus bombing and suicides in Guantanamo Bay efforts are aimed at completing the introduction described as a “publicity stunt”. This is uncon- of the system of random distribution of cases in scionable. Language has been devalued by the all Bulgarian courts. With regard to financial con- American Administration by removing from it all trol, Bulgaria pays particular attention to its moral content. strengthening the existing structures and enhanc- I put down this motion in light of the report ing the co-ordination mechanisms. Specialised by Senator Dick Marty, which made the subject training for officials at all levels of the competent topical. It has been rendered even more topical bodies is under way. by the admission by the United States authorities The co-ordination council for protection of the that they transferred a chained and shackled pris- European Community’s financial interests was oner through Shannon Airport in a civilian air- also strengthened. It comprises representatives of craft last Sunday without the required notifi- the relevant authorities and co-ordinates the cation to the Irish authorities. This places a grave work in this area. Integrated administration and question mark over the assurances given to the control systems in the area of agriculture is Irish Government by the US authorities concern- another area of concern. The Ministry of Agri- ing their use of Shannon. These assurances were culture and Forestry has concentrated its efforts never legally binding anyway. It is a requirement on completion this year of the aerial photography of international law that they should be legally required and on the opening of new rendering binding. They never have been and the Govern- plant construction and completion of the border ment knows this. inspection posts. However, even if one accepted their assur- ances, one must look beneath these legally mean- Acting Chairman (Mr. U. Burke): I ask the ingless forms of words and understand this Senator to move the adjournment. American Administration has departed drasti- cally from the norms of international law. Torture Debate adjourned. has been redefined to the point where apparently the only proof a subject has been tortured is if it results in death or permanent injury. Practices Use of Irish Airports: Motion. such as waterboarding, in which the victim is half- Mr. Norris: I move: drowned, revived under medical supervision and subsequently subjected to interrogation, a tech- That Seanad E´ ireann, in light of: nique initiated by the Gestapo, is defined as not — developments in Iraq; constituting torture. 157 Use of Irish Airports: 14 June 2006. Motion 158

No doubt, the piratical practice of kidnapping was told by the Fianna Fa´il benches when I was persons who may be either citizens of the US or a lone voice opposing Irish beef deals with the third countries and transporting them to regimes Iraqi army. I well remember the phrase which which the Bush Administration publically holds emerged from the foreign affairs spokesperson on in distaste so they may be tortured in the pres- the other side, when I was told what I advocated ence of CIA agents is regarded by the current might well be the moral position, but could incumbent at the White House and his associates Ireland afford it. We still have not resolved the as being perfectly legal. question as to whether Ireland can afford to act Regrettably, spokespersons for the Govern- morally in international relations. ment appear to have been infected by the linguis- I have some direct questions for the Minister tic practices of our American cousins. The Mini- of State at the Department of Foreign Affairs and ster for Foreign Affairs, Deputy Dermot Ahern, I would appreciate some direct answers. If, as the in a statement issued no later than yesterday, spokesperson suggested, there is nothing new in stated we will not facilitate and have not facili- the Marty report, why has comment not been tated extraordinary renditions and that is and made on the clearly proven fact that Ireland has remains our policy. Perhaps it remains a publicly- been involved in facilitating rendition? The Mini- stated policy but it is and will remain totally ster of State is shaking his head but it is perfectly untrue. I call on the Minister to withdraw it. clear. A man was snatched off the street, he was It has been demonstrated beyond any possi- taken to Egypt, he was tortured and we refuelled bility of doubt that by refuelling aircraft such as that aeroplane on the way back. That facilitates the notorious “Guantanamo express” we have rendition. At least, I know what the meaning of incontrovertibly facilitated the noxious practice language is, does the Minister of State? of extraordinary rendition. We in old Europe and Does he accept that, as I stated, the flight in many in the United States know this degradation June 2003, almost exactly three years ago, in of international standards of decency does not, which Abu Omar was abducted in Milan, illegally and should not, be allowed represent the typical flown to Egypt where he was tortured, was values of the democratic world. refuelled at Shannon Airport with the consent of Throughout this debate there has been con- the Irish Government on its return journey dur- stant obfuscation and indulgence in what the ing the same flight schedule? Does he accept this Taoiseach would no doubt describe as “waffle”. is clear evidence, and would so be accepted by an Serious questions have been asked but never international criminal court, of Ireland’s collusion answered. The Minister for Foreign Affairs con- with the United States in the practice of extra- fines himself to answering questions which have ordinary rendition? not been asked but for which he believes he has Does he accept that only for the action of a mollifying answer. He defends the Government cleaning staff, who boarded the aircraft at against accusations which have never been made Shannon last Sunday, a blind eye would have while never replying to those which have. been turned to this incident also? Does he accept There has been a tendency in Government that had the aeroplane, which had just dumped circles to dismiss the Marty report. The language, Abu Omar in Egypt for the purposes of torture, we are told, is emotional. I would not have been inspected in Shannon the modifications respect for anyone who did not become made to that plane for the purpose of transferring emotional at the prospect of human beings, in prisoners would have been noticed and reported? some cases subsequently proved totally innocent, I was one of three people who made a com- snatched off the streets or intercepted in airports, plaint to the Garda Commissioner concerning their clothes surgically shorn from their bodies, these flights. In response, he appointed two drug suppositories inserted in their anus, uncer- detective inspectors to interview me. I arranged emoniously clothed in nappies, then shackled to to be accompanied at that interview by Deputy the inside of a CIA plane disguised as a civilian Michael D. Higgins. We checked our recollec- aircraft and transported to destinations they tions of that meeting and we can both state inde- know not where for the purposes of being pendently that we were told on that occasion by tortured. these senior representatives of the Garda Sı´och- This is all done in the name of realpolitik to a´na that because of the way in which inter- maintain American investment in Ireland. This is national treaties were incorporated into Irish law, a short-sighted and mercenary view of morality they lacked the power to make the type of inves- and never served the Government well in the tigations sought at that time. This is in clear and past. Senator Mansergh in this House last Thurs- direct contradiction of what both the Taoiseach day, if one unpicks the diplomatic language, was and Minister for Foreign Affairs told the Da´il and surprisingly frank on this issue, stating the con- the public. In reply to a question by Deputy duct of foreign policy and our relations with other Sargent in the Da´il yesterday, the Taoiseach countries often involves striking difficult retorted that Deputy Sargent was not a garda. balances, taking into account both our values This is quite true but neither is the Taoiseach. I, and interests. at least, have the advantage of having spoken to Striking that balance wrongly can have serious the representatives of the Garda Commissioner. long-term consequences. This is virtually what I Will the Minister of State outline precisely the 159 Use of Irish Airports: 14 June 2006. Motion 160

[Mr. Norris.] ies speak, variously, of “big people in black legal status concerning such investigations? This balaclavas”, people “dressed in black like is exactly the kind of area that the abortive com- ninjas”, or people wearing “ordinary clothes, mittee, whose terms of reference had already but hooded”. been agreed by an all-party committee of the iv. the CIA agents “don’t utter a word when Oireachtas, could have investigated had it not they communicate with one another”, using been squashed by a combination of interest only hand signals ... groups operating in the undergrowth of Leinster House. v. some men speak of being punched or Arguments were made that Senators were lob- shoved by the agents at the beginning of the bied by local councillors from the area around operation in a rough or brutal fashion; others Shannon Airport. It is a sad day that Seanad talked about being gripped firmly from sev- E´ ireann should be ruled from Clare County eral sides. Council. I would have thought councillors would vi. the man’s hands and feet are shackled. have learned by now that it can be dangerous to mix money and morality. In any case, American vii. the man has all his clothes (including his business is peculiarly hard-headed. Despite all the underwear) cut from his body using knives or obsequious lickspittling, it was announced a week scissors in a careful, methodical fashion; an ago in the newspapers that a large proportion of eye-witness described how “someone was tak- these commercial military flights is being trans- ing these clothes and feeling every part, you ferred to other European destinations which are know, as if there was something inside the more convenient. Shannon Airport will and must clothes, and then putting them in a bag”. survive but it should not and must not survive on blood money. viii. the man is subjected to a full-body cavity There have been attacks on the Marty report, search, which also entails a close examination on its use of language and its reference to a “spid- of his hair, ears, mouth and lips. er’s web”. However, I have a map showing the ix. the man is photographed with a flash cam- flight paths and if it were shown to any child, he era ... or she would describe it as a spider’s web. Shannon Airport is right at the centre of this net- x. some accounts speak of a foreign object work of shame. being forcibly inserted into the man’s anus; some accounts speak more specifically of a Mr. Dooley: It is not at the centre. tranquiliser or suppository being administered per rectum — in each description this practice Mr. Norris: We have been named and shamed has been perceived as a grossly violating act in the Marty report as being in “category A”. We that affronts the man’s dignity. have been asked to do something about this by I do not have time to read the full description the human rights section of the United Nations, into the record but I hope I have read enough to the Irish Human Rights Commission and shame all of us in this House. Deputy Michael D. Amnesty International — I could go on and on. Higgins stated in the Da´il last night that these The practices to which I have referred are gross practices are “in breach of every single principle in the extreme and I would like to put them, as of international law, namely, the manner of determined by the Marty report, on the record. apprehension, the manner of transporting, the Reference was made to the lack of evidence but issue of habeas corpus, the right to legal protec- there is plenty of clear, cogent, factual evidence, tion, delivering a person inhuman treatment and itemised point by point in the report. Detailed the delivery of a person through enforced disap- observations, flight patterns and climatic con- pearance into an ill-defined and indeterminate ditions are all included. The report makes an place of detention”. absolutely cast-iron case about rendition and it This is the mess we have gotten ourselves into. describes what is known as the “security check” If only the Government had listened several years as follows: ago when I and my colleagues on this side of the i. it generally takes place in a small room (a House, and many decent Members of Fianna Fa´il locker room, a police reception area) at the air- and the Progressive Democrats, referred to these port, or at a transit facility nearby. practices and tried to stop it from averting its eyes from the horror in which it was rapidly enmeshing ii. the man is sometimes already blindfolded itself and becoming complicit, we would not be in when the operation begins, or will be blind- this mess tonight. folded quickly and remain so throughout most of the operation. Dr. Henry: I second the motion. It is a great iii. four to six CIA agents perform the oper- honour to be asked to do so. ation in a highly-disciplined, consistent fashion- On 23 June 2004, on Fifth Stage of the Transfer They are dressed in black (either civilian of Execution of Sentences Bill 2003 in this House, clothes or special ‘uniforms’), wearing black I stated the following to the Minister for Justice, gloves, with their full faces covered. Testimon- Equality and Law Reform: 161 Use of Irish Airports: 14 June 2006. Motion 162

As one who has long been concerned with tured in other countries and subsequently came the rights and treatment of prisoners, I wel- to Ireland. I doubt I would be able to do it myself come the Bill. It is extremely useful. I wish to even though medical publications, particularly in raise with the Minister a matter which has been the United States, are increasingly telling medical of great concern to the House. Can he assure personnel that they must address this issue. I us that untried and unsentenced people are not refer in particular to a recent article in the New being brought through Shannon from goodness England Journal of Medicine: knows where to Guantanamo Bay? We raised The Geneva Convention’s definition of tor- this issue in the House several times and it has ture can apparently be ignored by those who been a cause of real concern to us because have invaded Iraq. What is torture? In the many Irish citizens would not like to think that Convention against Torture and Other Cruel, was happening. Inhuman or Degrading Treatment or Punish- The Minister replied: ment, 1984, it is defined as follows: Obviously, I have no notice of that issue, Any act by which severe pain or suffering, although, apparently, the Senator has raised it whether physical or mental, is intentionally on other occasions in the House. Any person inflicted on a person for such purposes as who is on the soil of Ireland is entitled to the obtaining from him or a third person infor- protection of our Constitution. No person can mation or a confession, punishing him for an be brought through the soil of Ireland in the act he or a third person has committed or is custody of any other state except in accordance suspected of having committed, or intimidat- with international law. If the Senator has ing or coercing him or a third person, or for reason to believe any person has been transited any reason based on discrimination of any through Irish territory, in unlawful custody, kind, when such pain or suffering is inflicted particularly to Guantanamo, I would be by or at the instigation of or with the consent interested to hear it because I would respond or acquiescence of a public official or other to it immediately. We have our Constitution person acting in an official capacity. and the right of the freedom of the individual The people who are directing the rendition flights is not confined to citizens; it applies to all per- are acting in an official capacity. Physical torture sons. Therefore, it would cause me grave con- may include suspension, beatings, electric shock, cern if I thought people were being smuggled removal of nails and/or teeth, deprivation of food through Irish territory in circumstances that and water, sexual abuse and forced ingestion of amounted to unlawful detention in Irish law or chemicals. Other types of torture which are pri- in international law for that matter. marily psychological include solitary confine- If we do not look for people being smuggled ment, threats, witnessed torture or execution — through or if we continue to collude in our deal- this is particularly serious where the one tortured ings with the aeroplanes on which they are is a member of someone’s family — sham smuggled, how on earth can we afford them the executions, deprivation of sleep and monopoliz- benefits of our Constitution? ation of perception. The report on rendition, produced by Senator Regarding the effects of torture on the victims, Dick Marty of Switzerland, shows that Shannon survivors of torture often suffer from a combi- has been used by CIA aeroplanes to render nation of physical and psychological effects. people to third countries on a continuing basis. Physical effects may include scars, broken bones, Last Sunday’s expose´ by cleaning staff of a man- muscle swelling, stiffness or atrophy, chronic acled person on a civilian aeroplane demonstrates pain, headaches, deafness, blindness and loss of that we must be sceptical of US assertions that teeth. Victims often suffer from psychological our hospitality towards their aeroplanes is not symptoms such as lack of sleep, nightmares, prob- being abused. It is odd that there is no protocol lems with concentration, anxiety, depression, irri- in place to deal with discoveries such as that tability, adjustment disorders, impotence and made by the cleaners, whose actions I applaud. feelings of powerlessness, shame and guilt. Torture, both physical and psychological, has Anyone who has read the sufferings of the been employed on people who have been sent to young Canadian man who was wrongly taken third countries for rendition. There are plenty of while transiting through the United States of reports on this. Torture is a barbarous practice America to Syria and there tortured will under- and we all prefer to avoid thinking about or dis- stand that these effects are ongoing and deprive cussing it. There is avoidance on the part of the people of what can be described as a normal life. victim and denial on the part of the perpetrator, When I marched against the invasion of Iraq I his or her helpers and society as a whole. This felt sure that the proposed war would go badly denial is extensive and allows the practice of tor- but I did not think it would go as badly as it has ture and its effects to continue. done. Death and the destruction of Iraqi citizens I applaud those at the Centre for the Care of is everywhere and displacement of communities the Survivors of Torture, North Circular Road, on a sectarian basis is now following. Life is intol- on their courage in caring for those who were tor- erable for many people, women in particular 163 Use of Irish Airports: 14 June 2006. Motion 164

[Dr. Henry.] Senator will have the right to reply in concluding being singled out for rape and kidnapping. The the debate. He should reserve his comments Chaldean Christians have mainly fled the until then. country. In the Seanad I have called for the release of Mr. Norris: I apologise but I was asked a two women scientists, Dr. Huda Ammash and Dr. direct question. Rhab Taha. The former obtained her doctorate in Missouri University, the latter in East Anglia. Mr. Mooney: Senator Norris is fully aware of These women were portrayed as high profile pro- my position on the procedures that were being ducers of biological weapons of mass destruction adopted towards bringing a motion before this and members of the infamous “Pack of Cards” by House. That is what I objected to primarily, the discredited people in the Pentagon who had which was a matter of which he would be decided they were important members of Sad- aware—— dam’s regime. Calls for their trial or release were ignored. Dr. Ammash had breast cancer. Surely Mr. Norris: I accept that. I have no problem she could have been released on humanitarian with that. grounds. Even when their release was sought by those insurgents who kidnapped and sub- Mr. Mooney: ——as were many of my col- sequently beheaded Ken Bigley, a British hos- leagues within the Fianna Fa´il parliamentary tage, it was ignored. Perhaps their release would group but that is a separate issue. have helped in securing his release. After two and Having said that, the carefully constructed a half years, they were quietly released six building the Government presented to the Irish months ago but did anyone see that reported people and that I supported was destroyed in the widely? No, because it was not. dust of Shannon Airport last Sunday morning by, What has all this done to the standing of the I understand, a flight crew member and not a cle- United States in the world? It has diminished it aner — that has since been clarified — who greatly. In a recent survey, 60% of people quest- reported the matter to the duty manager at ioned in the United States and in Europe felt the Shannon Airport who, in turn, contacted the invasion of Iraq and its consequences had made Department of Foreign Affairs. the world more dangerous. Under Secretary In the past decade we talked in this House and Karen Hughes is touring the world in an attempt the other House about building trust. The basis to improve this serious change in the view of the on which this Government has operated since citizens of the world of the United States. She has 1997, and the new Administration in 2002 an uphill task. between the two parties, has been built on trust. The war has also diminished Americans them- The relationship between Ireland and the United selves. When I was there last autumn, I met a States of America has been built on trust. I woman who told me that as the mother of a strongly suggest that as a result of what happened young serviceman, she feared for what this war is last Sunday, that trust has been seriously eroded. doing to America’s young people. What does it I regret to say that because I am, and always have do to young people to be told they are to run been, a strong supporter of America. I am not a down children in the path of one’s truck in case supporter of the Iraq war. I believe it was a mis- they are slowing the trucks for a roadside bomb? take and that subsequent events have proven that The effect on the people of America will be hor- but that is not what this debate is about. The fact rific too. that the USA breached Irish law last Sunday, either inadvertently or deliberately — we do not Mr. Mooney: I would be grateful if Senator yet know which — is a matter of grave concern. I Norris would exclude me from the allegations he am grateful that the Minister for Foreign Affairs, has made repeatedly in this House about council- Deputy Dermot Ahern — I understand the Mini- lors having a direct influence. I want to record ster of State, Deputy Treacy, will address this that any decision I have taken on this matter, issue in his reply — has immediately taken action going back over a number of years, as it pertained by calling in the US ambassador and explaining to debate in this House, both in regard to the pro- to him, I believe in robust terms, the posed motion and otherwise, was reached after unacceptable nature of what happened last Sun- conclusions I came to independently, based on day in Shannon. the available information and on my own It is rather ironic that in doing some research preferences. for this debate I selected an article in last Sun- day’s Sunday Independent by John Clarke, a Mr. Norris: I am happy to accept that but what writer on security issues and a contributor to I was referring to were statements made to me by Jane’s Defence Weekly, the leading and very cred- members of the Senator’s party stating their ible defence magazine in the world. Reading the position. article now it is somewhat ironic to read some of the quotes he used to suggest there would be no An Cathaoirleach: Senator Norris, each reason the CIA would use Shannon for prisoners Senator has only eight minutes to contribute. The because it does not make any sense when the UK, 165 Use of Irish Airports: 14 June 2006. Motion 166 a NATO member with secure military bases, is other Irish airports. The answer was a resounding close by. In light of what happened on Sunday, “No”. In view of the close relationship between some of the quotes have a certain resonance. For this country and America I was very happy to example, he states: accept that. To have accepted otherwise would have been seen as a hostile act by a friendly Do people really think we Americans are nation. In the light of what has happened on Sun- that stupid? Why would we use Shannon for day, however, I now fully support the Govern- transferring prisoners? It doesn’t make sense. ment if that is the role it wishes to take — to They have been stupid or else they are being con- carry out random checks not just on US aero- spiratorial, and that is a matter for this Govern- planes landing at Shannon Airport but on all air- ment to investigate and establish the reason. It craft coming through that airport where there is makes it even more serious in light of what was any question of a violation of Irish airspace. That written in the article in justifying why there would is what has happened in this case. not have been any rendition of prisoners through According to the article by Mr. Clarke, the law Shannon Airport. He states: on transit applies to a prisoner being transported on a private jet, which it was in this instance, [For a start], look at the proximity of which lands in an Irish airport for refuelling, Shannon to the UK. Why would the CIA use a which it did. He said that without permission the civilian facility in a neutral, albeit friendly detention of the prisoner on Irish soil would be country when, a short hop away across the Irish in violation of Irish law. The law also applies to Sea, they have access to secure military air the transport through an Irish airport by another bases used by the US Air Force? The UK is a state of a prisoner on a military aircraft. fellow member of NATO, fully signed up to Washington’s “War on Terror”, and America’s In the light of this and because of my genuine most important ally among the multinational concern that there should not be any dismantling forces in Iraq. of the strong and close relationship between this country and America, which allows us to be criti- I might add that there is one element of the cal among friends, I would hate to believe that article with which I agree and which perhaps what happened last Sunday was the tip of the ice- might be worthy of reflection. It states: berg and that, in fact, this was just the latest in a series of violations of Irish law and airspace, . . . CIA [agents] use private jets nowadays which happened to have been discovered by like other people use taxis, just to get from A chance by a flight crew member. to B. Uncle Sam has deep pockets, and is pull- ing out all the stops in the “War on Terror”. Those aircraft are likely to be carrying intelli- Mr. Bradford: I am glad of the opportunity to say a few words on this motion. The call, by the gence agents on various missions, or security ´ guards being transported to carry out protec- movers of the motion, for Seanad Eireann to tion duty at some US installation abroad, establish a select committee on the use of Irish rather than prisoners. airports to investigate the use of Shannon by American military authorities is a modest and I have to accept that in most cases, and perhaps very fair request. It is something that we in all cases up to Sunday, that is the case but it have—— does not necessarily follow that because it looks like a duck and sounds like a duck, it is a duck. An Cathaoirleach: Order now, please. A What has plagued this debate on both sides for Senator is speaking and must be given due court- the past while is that there is an absence of spec- esy by Members. ific evidence. I am aware that those who are pro- posing that the Government should have taken a Mr. Norris: I appreciate that and I hope that more proactive role have been reinforced by the this concern will be general throughout the events of last Sunday. I am pleased that the Mini- Seanad. It was not at the beginning of the debate. ster, Deputy Ahern, in the course of a radio inter- view yesterday evening, said that in bringing pro- An Cathaoirleach: I was here at the beginning posals to Cabinet on what happened on Sunday, of the debate and I encourage Members to show that left open the question of random checks by due courtesy to speakers and ensure that every- the gardaı´ on aeroplanes landing at Shannon. I one’s views are heard. I can assure Senator Norris would welcome that. I have never been opposed that is the situation at all times. to that view. All I ever suggested was that as the United States Administration had repeatedly and Mr. Bradford: I want to reiterate that this call consistently said, not just to the European Union, for the establishment of a select committee to as the Minister again pointed out yesterday in the examine the use of Irish airports to investigate contextual history he presented of this whole the possible misuse of Shannon is a very modest issue, but to the Government in response to spec- and reasonable request, one that we have ific questions from it, namely, whether they were debated in this House on previous occasions. We in violation of Irish law and indulging in extra- had almost reached a point where an all-party ordinary renditions through Shannon Airport or group in the Seanad was about to be established 167 Use of Irish Airports: 14 June 2006. Motion 168

[Mr. Bradford.] Romania and Bulgaria to the European Union. on this issue. Some preliminary meetings had A number of speakers made the point as regards taken place, it appeared to have the support of the type of society Romania and Bulgaria were all sides and we felt that such a committee would previously, under totalitarian communist rule. It serve a very useful purpose. is our desire that this type of administration, rule At the very core of the argument about or society should not exist any longer. Shannon, rendition, the use of Irish airports and Unfortunately, practices such as rendition and the knowledge or lack of it by the Irish auth- torture have more in common with the old Soviet orities, there is serious doubt and grave concern. Union than what one might expect from the stan- I concur with what Senator Mooney has said as dards of the United States of America. It is of regards absolute clarification being urgently major concern to us all that practices seem to be required. The Council of Europe report needs occurring, arising from the war in Iraq, which are careful study. I attended the first session of the unethical, immoral and illegal. Our Government Council of Europe where Senator Marty must be prepared to speak out against those prac- presented his interim report. On that occasion he tices. If there is any possibility of a resolution to conceded that there were as many questions as the enormous problem in Iraq, if there is to be answers. He has now come forward with further progress in the Middle East and if those types of work and serious questions, certainly, are raised. political flashpoints in the world are to have their We look forward to the next meeting of the problems addressed, the United States has a sig- Parliamentary Assembly of the Council of nificant role to play. The credibility of the United Europe in a fortnight’s time for a full debate on States, however, and its usefulness as an arbi- that particular report on rendition. trator of international disputes are severely less- The practice of rendition is something about ened when questions such as rendition and tor- which we must express serious political objec- ture are being discussed and even more worrying, tions, on moral and political grounds, and I am practised. We need to clarify these issues sure it is opposed by every Member of this urgently. House. That can be stated without fear of contra- The select committee would have a useful role diction. The issue before the House, however, is to play, in investigating, asking questions, being the question of setting up a select committee, prepared to seek the truth and to reach a con- which was a source of political debate and div- clusion. I appeal to the Minister of State in his ision among the Government parties in House on response to take on board the events of recent the previous occasion. In the light of the most weeks. A Government response was given four recent events, however, it is in everybody’s or five months ago, but matters have moved on, interest to have a full and clear picture of what is not just as regards the Marty report and other happening in Shannon. pieces of evidence, but in the context of the Senator Mooney is correct in saying that in events of last weekend in particular. It requires a these types of issues it is important that we can new response, fresh thinking and flexibility on the lodge our complaints, concerns and where neces- part of the Government to allow this House of sary, our objections, to the American Admini- the Oireachtas, a senior part of Irish public life, stration. A very close political relationship has to play an investigative role, which it is more than always existed between the United States and willing to do if given the opportunity. Ireland and hopefully will continue. It is in our mutual interests that this should be so. However, Mr. Dooley: I welcome the Minister of State to where practices occur to which we fundamentally the House and the contributions of other object, there is no point in Ireland hiding its head Senators. This is an issue that often gets debated in the sand. We must call a spade a spade. When in this House. Sometimes it is fraught with more there is serious doubt as regards what is hap- hysteria than fact. I can understand that because pening at Shannon, there is an obligation on the at times we all become concerned about the Government to investigate and react. It will cer- issues as we perceive them. Coming from County tainly be supported by all Members of this House. Clare, it can also be an emotive issue, not just in That is why, as a first step, we need to have our monetary terms but also because there is a focus own sources of information. The Marty and other put on our county and on our airport for all the reports, including rumoured reports, statistics, wrong reasons. I do not refer to anybody in this etc., are helpful, but it would be very useful to us, House, but people seek to make political capital politically, if a committee of this House was able or public comment on the back of what we to launch its own investigation and use its believe is a very good piece of infrastructure and resources to try to get the answers we seek. a benefit to the west of Ireland. They do so in a If there is evidence, as appears likely, that way that commingles fact with fiction, involving a Shannon is being used for rendition purposes, we level of hysteria, misinformation and downright must be profoundly concerned. The use of ren- lies at times. dition and the practice of torture is unjustifiable There is no doubt that what happened over the and immoral. It is in every respect counter-pro- weekend has focused many minds on this issue. I ductive in the long-run. There was a debate earl- have done the best I can to come to terms with ier in the House today about the accession of the facts, based on information that I have tried 169 Use of Irish Airports: 14 June 2006. Motion 170 to gather over the last few days. In doing so, I I share the sentiments of my colleague, Senator have ignored the statements from all sides and Mooney, as I too have come to my own view on tried to talk to people on the ground at the air- this. I also share the views of the Clare councillors port. It seems to me that there is not a major on this issue and I help to inform their attitude crisis, although others might say that I would say from time to time as they look to us for our views that. My understanding was that a member of the as national legislators. We meet regularly and we cleaning staff became concerned when she saw discuss a range of issues and topics. We agree on someone on the aircraft in the company of police some of them and we do not agree with others. officers, while others had disembarked. In They will make their voice heard on issues with reporting that to a supervisor, a decision was which they do not agree. Anybody that has an taken to contact the American Embassy. The ongoing relationship with county councillors will embassy was quick to establish the facts of the recognise that it is often difficult to satisfy their situation and ascertained information from per- issues on all occasions. We form our own views, sonnel at the airport. I believe they got the co- but their involvement was helpful in highlighting operation of airport staff in trying to establish the what they perceived were problems. It would be facts. I welcome that and the pro-active manner unfair to suggest that local representatives should in which the embassy dealt with the situation. It not have the right to talk to their national parlia- is a difficult issue for a foreign mission, dealing mentarians, after all, they are the electorate of with what it sees as a war situation, the army, the Senate. intelligence agencies and their work. A further mitigating fact was that the civilian Mr. Norris: That is a link that should be cut. airline flying these soldiers home does not nor- mally transit through Shannon Airport, but Mr. Dooley: There is a relationship between through Frankfurt-Hahn in Germany. That air- Senator Norris and the people who elect him. line has done a deal with Shannon Airport to fly the troops via Shannon during the world cup and Mr. Norris: Yes, but I have 50,000 in doing so, may not be as clear on the protocols constituents—— in dealing with the Irish situation. That does not relieve the US Government of its obligation to An Cathaoirleach: Senator Norris will get an observe the laws of this land, which we as legis- opportunity to reply. lators are proud to enact. The efforts made by the embassy to acknowledge the fact and to try to Mr. Dooley: I am proud to have been elected deal with the information deficit that was there a member of the Seanad by the councillors has been welcome. That does not take from the throughout Ireland, especially in County Clare. I fact that it was unacceptable that our laws were will continue to represent my own views, in con- ignored, albeit inadvertently in my view. sultation with their views, as long as I am here. I There has been an effort to mix this infor- hope that is for some time to come. mation up with Senator Marty’s report released There have been references to blood money. It last week. It was unfortunate that the two issues is ironic to discuss it in that context when one have collided. I believe that his report is largely considers that Germany was very opposed to the baseless. It is devoid of hard fact and in my view war in Iraq, yet it is now receiving more troops is biased. Senator Norris stated that we were cat- than any other country. In more recent times, egorised as “category A”. The use of a term such troops going through Shannon Airport are part as “category A” denotes a level of seriousness in of the multinational force in Iraq that is there at our involvement, but it is quite the inverse. Cate- the request of the Iraqi Government. They are gory A represents a group of airports that only backed by the UN Security Council Resolution have a minor involvement as a refuelling stop on 1637, which was passed on 8 November. the return journey from these so-called “mis- sions”. There was no major evidence provided, Mr. Quinn: We had an interesting debate on albeit that there is a map that does not look like Iraq last November. I am on the board of an a spider’s web in my view, but more like the map organisation in the US and when there in that Ryanair has on its website. December, I found myself talking to a number of My concern is that there has been an effort to Americans about events in Iraq. I was surprised confuse Ireland with being involved in the worst that they did not seem to understand that the category. The lowest category, D, is where the steps they were taking were working against their greatest complications take place, if weight is to long term interests. be given to that report. I know that many people I admire Senator Mooney for what he said in this House have spoke on this issue in a today and we are both friends of the US. When I genuine way, but I am concerned that an effort is spoke last November, I spoke as a friend of the being made to damage the name of Shannon US, even though I was very critical. In January, I Airport. circulated that speech to Americans and many of A point was made on how we came to our them came back to me to talk about it. They were views as part of the Fianna Fa´il Party in the surprised at the strength of feeling I had Seanad on the establishment of such a committee. expressed. However, I found that many of them 171 Use of Irish Airports: 14 June 2006. Motion 172

[Mr. Quinn.] questioning. [However, it was not working for were supportive of what I would regard as tor- them.] ture. That surprised me because my memory was The question was: Was such treatment con- that they would not have done so before. One of sistent with the Geneva Conventions? them sent me an article to which I will refer. President Bush had declared in February What happened last Sunday at Shannon Air- 2002 that al-Qaeda members fell wholly out- port has shaken me, because until then I believed side the conventions and that Taliban prisoners the Americans. I believed what they said, would not receive prisoner-of-war status — although some other Members of this House did without which they, too, would not be covered not. I was surprised by what was discovered last by the Geneva rules. [I had not been aware of Sunday. I am shaken by that. If a person lets me that.] down by misleading me once, I will give him or What emerged [from this] was a hybrid and her a second chance but if that person misleads fluid set of detention practices. As interrog- me a second time, he or she loses my trust. The ators tried to overcome the prisoners’ resist- Americans are in danger of losing our trust ance, their reference point remained Geneva because they seem to have misled us about what and other humanitarian treaties. But the was happening with those aeroplanes that were interrogators pushed into the outer limits of passing through Shannon Airport in recent times. what they thought the law allowed, undoubt- I was surprised by the lack of understanding edly recognising that the prisoners in their con- among Americans that they have no chance of trol violated everything the pacts stood for. winning this war on terror by using the same This is what frightens me. It seems the American tactics as those used by the terrorists. Their only are now defending the steps they took. They say way of winning it is to change the hearts and the the terrorists do not stick to the rules, therefore, minds of those terrorists, but instead they seem why should they do so. They treat the soldiers not only to be losing out on the fight to change who fight them on a battlefield differently the hearts and minds of those terrorists but to be because they could receive the same treatment creating many more who have become associated from the soldiers, but they say the terrorists act with the aims and objectives of those terrorists. differently and, therefore, they do not have to When I circulated a copy of what I had said on adhere to the Geneva Conventions. that occasion, I was surprised by those who came The reason I have gone to some pains to out- back to defend the areas of torture. One of the line this is that I believed the Americans were comments made was as follows: not involved in torture other than those who had stretched the limit beyond what they should have It didn’t take long for interrogators in the done. When we heard the outcry against the Abu war on terror to realise that their part was not Ghraib prisoners and we saw those photographs, going according to script. Pentagon doctrine, we said that was not acceptable, and we thought honed over decades of Cold War planning, it was not acceptable to the Americans. However, held that 95% of prisoners would break upon now it seems that is not correct. straightforward questioning. Interrogators in I am not sure that the proposal in the motion Afghanistan, and later in Cuba and Iraq, found to establish a select committee to investigate this just the opposite . . . matter is the correct way to address it, and I In particular, torturous interrogation would like to hear the Minister of State’s view on methods, developed at Guantanamo Bay and this. I notice that the Government has not tabled Afghanistan in illegal disregard of Geneva pro- an amendment to the motion and, therefore, I tections, migrated ... [later to Iraq] and were assume it is likely to accept Senator Norris’s pro- manifest in the abuse photos [that we saw]. posal to establish a select committee. It appears that this was binned on with the Perhaps there is another way to deal with this approval of very high ranking Americans. Chris matter, but it seems the Americans abused the Mackey a co-author of the book “The Interrog- reception opportunities we allowed at Shannon ators: Inside the Secret War Against al Qaeda” Airport. There was no doubt as to whose side we wrote a gripping account of the interrogation were on when the war commenced in Iraq. I was methods used in Iraq. I will refer to one of two opposed to that war, but on the day it started of them, one in particular caught my imagination. there was no question as to whether we were on It states: the side of Saddam Hussein or on the side of those who had gone into Iraq. We had hoped the Battlefield commanders in Afghanistan and fighting would be over as quickly as possible, but intelligence officials in Washington kept that did not happen and it appears highly unlikely pressing for information ... The frustrated it will happen. However, we must now help the interrogators constantly discussed how to get it. Americans who invaded Iraq to get out by way The best hope, they agreed, was to re-create of some mechanism. The manner in which we can the “shock of capture” — that vulnerable men- do that is by urging them to change the hearts tal state when a prisoner is most frightened, and minds of the terrorists and of those who sup- most uncertain, and most likely to respond to port them and not to begin acting like terrorists. 173 Use of Irish Airports: 14 June 2006. Motion 174

A step taken which ignores the Geneva Con- careful and precise use of language. Speaking as vention is unacceptable. It is unacceptable if he does of “a web that has been spun out Shannon Airport has been used in some form or incrementally over several years, using tactics and other in that respect. To take up Senator techniques that have had to be developed in Dooley’s point, I read Senator Marty’s report and response to new theatres of war” in my view does there is little doubt that the category A level is little to help any argument he wishes to make. the very least objectionable of the levels, but it In any event, my first point is that Dick Marty still is beyond what we understood was hap- found no evidence of terrorism suspects being pening. I hope the Minister of State will give “rendered” through Shannon. I am not surprised. serious consideration to accepting this motion I do not believe that the US would use Shannon tabled by Senators Norris and Henry. for such activity. Senator Norris may have strong views on the US military but I do not think he Mr. Minihan: I welcome the Minister of State would think it stupid in this regard. I draw atten- and his officials to the House. I am grateful to tion to the sensible questions posed by the media have this opportunity to speak again on this in this regard and questions that I posed here pre- important topic. It is less than four months since viously. Would the United States be so stupid as this issue was the subject of a Private Member’s to use a civilian facility in a neutral, albeit friendly motion in this House and the reality is that not country when across the Irish Sea, it has access to much has changed in that time. What is new is secure military airbases used by the US Air the publication of the Council of Europe Report Force? Would it be so stupid as to use a civilian on CIA Rendition Flights, referred to in the Inde- facility when its air force has no shortage of long- pendents group’s motion. That report and the range aircraft with mid-air refuelling capabilities motion’s reference to the establishment of a that can travel around the globe or stay in the air special committee are the two elements on which for extended periods without landing for I will focus. refuelling at Shannon or anywhere else? Before doing so, I wish to mention the incident I have often wondered, as a former officer, at Shannon last Sunday, when a serving marine what military principles would be going through and US citizen, subject to military law, tried and the mind of a commanding officer who would risk convicted of an offence, was being transported such activity at Shannon, when there back to the US to serve his sentence. Although it 6 o’clock is the possibility of a technical fault, has no connection with allegations of extraordi- bad weather or numerous other nary rendition and, thus, this motion, it is right reasons which would ground the aeroplane and the Government treated even an inadvertent risk uncovering activity he or she needs to keep administrative error as unacceptable and with the covered, when there are NATO bases a mere skip gravest concern. The Minister correctly sum- away in the United Kingdom or Germany. moned the US ambassador and left him in no The Independent Senators’ motion mentions doubt as to Ireland’s position on the failure to the establishment by this House of a select com- inform and secure consent. mittee to investigate the use of Shannon by Importantly, in the context of this evening’s American military authorities, especially the debate, the Government did two things. First, to CIA. May I remind them of the words of Dick ensure that appropriate steps are taken to Marty, to whom they refer to with great admir- prevent any recurrence of the incident, the ation. He stated, “It is paradoxical to expect Government is to engage with the US authorities bodies without any real investigatory powers to on arrangements for notification and information adduce evidence in the legal sense”. This House sharing, and the strengthening of verification pro- could fit into that category. He goes on to state, cedures, as necessary. Second, the Minister took “a lack of willingness and commitment on the the opportunity to reiterate the consistent posi- part of national institutions that could, and tion of the Government that no aircraft can use should, have completely clarified these alle- Shannon for extraordinary rendition and that gations which from the outset did not appear to Ireland will not facilitate and has not facilitated be totally unfounded”. extraordinary renditions. That is, and remains, The Government co-operated fully with the the Government’s policy. Council of Europe investigation, and its expla- The Minister made it crystal clear that if the nation of its law and practice to the Council of Government at any stage receives hard evidence Europe was one of only nine, out of 45 received, of extraordinary rendition it would act upon it that the Secretary General of the Council of and expect the Garda Sı´ocha´na to act upon it Europe judged to be sufficiently comprehensive also. not to require further clarification. This exemplif- Returning to my two points on this motion, I ies the “willingness and commitment” of our said in the House on 8 March last that Dick Government. Marty’s report for the Council of Europe was As for the “willingness and commitment” of very careful and precise in its use of language. It this House, I was delighted to work on drafting is fair to say that Dick Marty’s decision to adopt the terms of reference for a proposed select com- the metaphor of a global “spider’s web” for his mittee. I made this point in March but obviously report represents a regrettable move away from must make it again: the reason for not convening 175 Use of Irish Airports: 14 June 2006. Motion 176

[Mr. Minihan.] Parliament committee would liaise. I am glad that the select committee was that a majority in this Senator Minihan seems to support the idea of the House did not support it, not that a majority establishment of this type of committee. The thought there was nothing to examine, or any Seanad would be the ideal forum for that. other surreptitious reason. It was not my wish The Government has put its head in the sand that the issue end in that manner. Pursuing so far on this issue. In the last report of the Council of and so publicly a process towards establishing Europe, Mr. Terry Davis said that accepting such a committee did this House no service. diplomatic assurances was not enough but that is I am not inclined to undermine this House by what the Government has done. proposing defiance of its determination, the will While I am aware that there is no evidence as of the majority. One should be careful about yet that Baldonnell Aerodrome has been used for where one’s logic leads. I refer to the claim that this type of activity, general points made by the Ireland colludes in rendition, that aircraft landed Council of Europe apply to it. We must establish at Shannon after rendition operations, and that that the procedures for overseeing the use of Bal- Ireland colludes by allowing an aeroplane to land donnell, Shannon and other airports for the var- at Shannon, that has transported a person ious aircraft are sufficient to make sure that we illegally, or may do so. Our logic may be applied are meeting our obligations under international only to the use of the aeroplane while it is in the human rights law. An Oireachtas committee country. Were Ireland to cease engagement with would establish what we need to do and what entities or operations that in any way facilitate procedures should be in place. There is plenty of the running of a military operation, that could documentation available for it to examine. We have serious and unforeseen consequences. Do can examine our procedures and our legislation. we ask Intel, Hewlett Packard and Microsoft to cease operations here because armies employ Mr. Mooney: Senator Marty found nothing. their technology, microchips, computers and operating systems? Should we ask Pfizer, Abbott Ms Tuffy: That is not the case. Senator Marty and Wyeth, all the pharmaceutical companies, to found plenty of evidence that on the balance of pack up because soldiers in combat situations probability we should be taking greater care than might use their medicines? we have done. I welcome the raising of this issue by the Inde- The Council of Europe report and Terry Davis, pendent Senators, notwithstanding my two main the Secretary General of the Council, concur that reservations. Everyone must be concerned about laws will need to be put in place. For example, military action, capture, transportation, torture, we may need to introduce a criminal offence the abuse of human rights, or any dilution of what covering the process of extraordinary rendition. I every right-thinking person considers to be tor- read on the Council’s website that Mr. Davis ture or inhumane treatment. We cannot suspend issued a report today detailing further infor- our reason or logic. That would serve neither this mation. He will soon make proposals for action House nor any belief, no matter how passion- to the committee of ministers of the Council of ately held. Europe on the legislation that needs to be put in place, including in Ireland. This applies to all Ms Tuffy: I welcome and support this motion member countries of the Council. Hungary is the tabled by the Independent Senators. Last March only country he specifies because it has the the Labour Party tabled a similar motion with strongest oversight measures. He will make pro- cross-party support on this side of the House, posals in terms of legislation we need to put in which Senator Norris seconded. We likewise pro- place and the European Parliament will look for posed an appointment to a select committee of information on what we are doing. That is the Senators, one of whose main purposes was to reason we need a committee. We need it so we establish what mechanisms are in place, and will have the information available to hand as to whether our laws and practices ensure adequate the mechanisms we have in place and those we safeguards to prevent a breach of the various need to put in place to bring about improvement international human rights instruments to which and as to how we can use our current laws better we have signed up, and our own laws. and whether we need to introduce new laws. A Ireland, like other European countries, has a committee would help us deal with these matters responsibility to make sure that use is not made and help us use our sovereignty to work with the of our airspace because of our obligations under Council of Europe and the European Parliament national and international law, including the committee to do what is necessary. European Convention on Human Rights. During There is no point in waiting for the bad news that debate in March, the Minister of State said or for the announcement that we have not been the Council of Europe was looking into this and dealing correctly with the matter. We should not the European Parliament had set up a committee. just wait like Senator Mooney suggests until we I made the point that the document establishing are told “Here is the evidence.” We should be the brief of the European Parliament committee proactive on the issue and be ready to do what- foresaw that there would be national parliamen- ever is necessary and implement whatever laws tary committees set up with which the European are required. It is not about waiting to be told we 177 Use of Irish Airports: 14 June 2006. Motion 178 are not dealing correctly with the matter like with any such detention centres were established in the recent Supreme Court judgment and then any member state of the Council of Europe. panicking. We must try and do something now. The Senator also makes it clear — the We must get as much information as possible and Parliamentary Assembly had already unre- do what we can to improve procedures. servedly shared the view of the United States It is clear from the incident at the weekend that Government — that there was a determination we do not have even the basic procedures in place on the part of the US and all countries in Europe to deal with the issue. We would not have heard to combat international terrorism. International the different stories about what happened at terrorism which is now highly mobilised and Shannon at the weekend, if we had proper and avails of modern telecommunications and adequate procedures in places. There is much technologies is a major threat to the international preparatory work we can do now to deal with community. Therefore, there is a responsibility these matters. on all of us to work with the United States to end international terrorism, an example of which we Mr. Daly: I was a member of the Parliamentary saw on 11 September 2001 in New York. Assembly of the Council of Europe for a number That event did not involve just ten flights carry- of years and a member of its legal affairs commit- ing 17 people, but involved the indiscriminate tee and a colleague of Senator Marty. I am aware slaughter of thousands of people by the activities of the concern in the Council of Europe and the of some of the people who would be loudest in European Parliament at the practice of extraordi- their condemnation of rendition flights. They nary rendition and of the objections to it by var- have no hesitation however in organising, ious people. I am also aware of the publicity sur- through their cells and networks throughout the rounding the issue which was initiated by Human international community, renegades who are pre- Rights Watch, The Washington Post and other pared to indiscriminately bomb, kill, slaughter or concerned commentators and correspondents take any action they think necessary to under- several years ago when the initial reports on the mine democracy and civilisation. Let us not for- practice of extraordinary rendition were raised get that. by them. In the conclusion of his report, Senator Marty quotes the Parliamentary Assembly. He makes it I recommend that people interested in the clear that in so far as the responsibility of the matter read Senator Marty’s report in full. He international community is concerned, it has an makes it very clear that in so far as we in Ireland equal responsibility with the United States to find are concerned, Shannon’s involvement was ways to combat international terrorism in order merely as a stopover for aeroplanes which had to put an end to the type of situation we saw in been used in rendition flights in Europe. He New York on 11 September 2001. made it very clear that we should not lose our It is important to recognise that both the Euro- sense of proportion in this regard. He stated pean Parliament and the Council of Europe are clearly in his report that of all the investigations continuing their work in this regard. In light of he had carried out, he was talking of extraordi- this, it is totally unnecessary for the Seanad to get nary rendition in only ten flights in all over a involved in a committee to deal with matters that period of years — not thousands or hundreds of are being dealt with at the highest level of flights. Those ten flights involved 17 prisoners in Government. Those matters have been dealt with total, all of whose cases were fully examined by through the Council of Europe, through the legal the Senator and detailed in the report. We should affairs committee under Senator Marty and not lose sight of the fact that none of those cases through the European Parliament. These have was in any way even remotely connected with sought the help and assistance of European satel- Shannon or Ireland. If we lose our sense of pro- lite communications and international aviation portion, we will confuse the public and create regulatory authorities, such as the Irish Aviation enormous confusion generally on the issue. The Authority and other authorities throughout objective should be to find ways in which pressure Europe. In that situation, it would not be useful can be brought on the United States and govern- for us to become involved in the type of activity ments involved in the practice of extraordinary that is already being dealt with at high inter- rendition to desist from it. national level. Senator Marty’s report focused also not so The Parliamentary Assembly will also debate much on flights but on allegations made that cer- this matter. Senator Mooney is a member of the tain countries in Europe had secret detention Parliamentary Assembly and the matter will be centres. Romania and Poland were singled out in debated at the end of the month in Strasbourg. particular. It had also been suggested there might be similar detention centres for the carrying out Mr. Mooney: It is only a draft report. of torture in other member states of the Council of Europe. Senator Marty’s report confirms there Mr. Daly: It is only a draft report. However, is no factual evidence to link either of the coun- the draft report makes it very clear that while tries mentioned as having secret detention there is concern about rendition, we all oppose centres and there was no formal evidence that the use of the type of rendition described in it. 179 Use of Irish Airports: 14 June 2006. Motion 180

[Mr. Daly.] Senator Daly is absolutely right when he points Senator Marty describes it vividly and does not out that, as a democratic society that is friendly paint a pretty picture. with other democratic societies, we have a There is another picture of which we must take responsibility to counteract the fanatical form of account and we must not lose sight of some of terrorism that now exists throughout the world. the objectives some of us have, namely, to work We should do whatever we can to ensure that through the international community to find ways justice is brought to bear in these circumstances. to combat international terrorism, because There is no set of circumstances in which the war nobody is immune from its activities. on terrorism can conceivably be won by those who are using illegal practices such as extraordi- Mr. B. Hayes: I support the motion that has nary rendition. There is no doubt that such prac- been proposed by the Independent Senators. I tices have been allowed in the United States and thank Senator Norris and his colleagues for giving other friendly countries for far too long. us another opportunity to discuss this matter, which we debated at length some months ago. On Mr. Mooney: They have not been allowed in that occasion, I joined my party’s spokesperson this country. in outlining Fine Gael’s position on this issue. Fine Gael strongly believes that a select com- Mr. B. Hayes: Countries like Ireland which mittee of this House should be established to have a long and historic tradition of friendliness investigate this matter in line with Irish consti- and cultural ties with the people and Government tutional and judicial practice and to ensure that a of the US have a responsibility to be upfront and report is laid before both Houses. The argument honest on this issue. I have said previously that I that was made by the Government the last time reject the Bush Administration’s new approach to we considered this matter, in opposition to dealing with these matters. I refer to its blatant another motion that was supported by Senator attempts to put to one side the legitimate con- Norris, his Independent colleagues and others on cerns of many countries about the war on this side of the House, was that we should wait terrorism. for either the draft or finalised versions of the The great success of the US in the years after reports of two outstanding investigations, which the Second World War was that it built a genuine were being concluded by the European Parlia- multilateral approach to problems of this nature. ment and the Council of Europe at that time, The US and other countries helped to reconstruct before we reached any ultimate considerations. A Europe from the ashes of the Second World War, more dangerous side of that argument was that to establish the United Nations and to put in there was no need for us to engage in any investi- place an international code of law on the issues gations, given that other bodies were engaging in of human rights we are debating this evening. investigations. That seems to be the tenor of the That code of law was fundamental to the develop- opposition that has been expressed to this motion ment of a new world order after the Second this evening, but I reject it. World War. We should state honestly that there As a sovereign Parliament, the Oireachtas has been a reduction in such standards over the should determine for itself, by means of an inves- past seven years. All democrats who believe in an tigation, the level of disquiet that exists on this international order need to oppose that issue in Shannon and elsewhere in this country. reduction strongly. This House has sought for many years to redefine I understand that the Government is in a diffi- its role, to make itself more relevant and to cult position on this issue for economic, commer- become more attuned to what the ordinary cial and other reasons. We are far too slow to people of this country want. If ever there was an express to our friends in the US Administration issue that necessitated the establishment of a sel- that we have concerns like those which are out- ect committee to report to this House and this lined in this motion. Such concerns relate to many sovereign Parliament within a set timeframe, it is aspects of US policy in Iraq and other parts of this issue. I reject utterly the argument of those the world over recent years. who oppose this motion that we cannot investi- We now have an extraordinary opportunity to gate this matter because other interests are bring the issue of Seanad reform to centre stage. investigating it. This is an important issue in We can show the relevance of this House by Ireland and in many other EU countries. We quickly coming to a conclusion on an investig- should not leave it to others to investigate it or ative matter about which Irish people are con- to come to conclusions on it. I am quite surprised cerned. The House should demonstrate that it can that the Government has not proposed an respond quickly to such issues rather than divvy- amendment to this motion, setting out explicitly ing them up among the Council of Europe and its reasons for rejecting the proposal to establish the European Parliament. Things that happen on a committee of this nature, given the extent of Irish territory are matters for Irish sovereignty. the public disquiet that exists on this issue and That is the issue which is at the heart of this the level of debate that followed the initial publi- debate. We will be in dereliction of our duty if cation of both reports, one of which has been once again the Government fails to allow us to published in draft form. conduct an investigation of the type that is 181 Use of Irish Airports: 14 June 2006. Motion 182 described in the motion tabled by Senator Norris This means that at present, when I hear a state- and his colleagues. ment coming from those same sources, my first reaction is disbelief, caution or doubt. In itself, Mr. O’Toole: Hear, hear. this constitutes a danger, because it is vital for credibility to be part of any engagement or justifi- Mr. B. Hayes: We support that process again cation on behalf of people whom we would this evening as we did three months ago. We regard as our friends. I have nothing but admir- believe the Government should reconsider its ation for America, which I know to be a sister position, even at this late hour, in light of the new nation. I am aware of the relationship which has disquieting revelations about what is passing built up. Members are aware that the relationship through Shannon Airport. is not simply emotional or sentimental, but is much more pragmatic than that. As I noted on Labhra´sO´ Murchu´ : I was glad to note that this the Order of Business yesterday, it is unfair to motion was to be brought before the House, criticise the people of America for the actions of particularly when I saw that the names of their Administration. Senators Norris and Henry were attached to it. They have been exceptionally forthright Senators: Hear, hear. exponents of human rights in this House. We needed people to express the views which they Labhra´sO´ Murchu´ : In recent opinion polls, it expressed at various times to ensure that such is quite clear there is little more than 30% agree- matters were the subject of open and proper ment or support for what America has done or is debate. I think Senators will agree that my views doing in Iraq at present. on the bigger question of the war in Iraq have However, I will move beyond Iraq to consider been on the record from the first days of the the situation facing the Palestinian people. invasion of that country. Undoubtedly, America would come to their sup- port, were they in the club with America. Mr. Norris: Absolutely. However, Israel is in the club with America, has weapons of mass destruction—— Labhra´sO´ Murchu´ : I have always maintained that the invasion was illegal, unnecessary and Mr. Norris: The Senator is correct. immoral. I am not interested in saying “I told you so” but one cannot deny that I have been proved Labhra´sO´ Murchu´ : —— and a strong econ- right. Nobody can suggest that the terrorist threat omic position within America itself, as well as is any less now than it was just after the terrible political clout. and tragic events of 11 September 2001. It can be argued, in many ways, that such terrorism has However, instead of considering such issues, been exported throughout the world. As I said on Members must consider that Ireland has always the Order of Business yesterday, we have seen been an honest broker in the world and has many excesses in Iraq and other parts of the always been looked up to in this regard. Although world where pre-emptive strikes have taken I do not state this merely because I am a member place. A number of countries now subscribe to of a Government party, Ireland has always acted that approach, which seems to be commonplace, honourably since the days of Frank Aiken. I have and many other countries have suffered as a read Deputy Cowen’s address to the United result. I honestly do not believe we have gained Nations repeatedly, in which Ireland took a stand. any understanding, support or empathy from the Moreover, Charlie Haughey, go nde´anfaidh Dia latter group of countries — the opposite is the tro´ caire air, took a stand on Gibraltar. Ireland has case. Diplomacy has absolutely and utterly always taken a conscientious stand for what is broken down. right, to give a voice to the voiceless, because this One can only wonder what the future holds for was also needed in its own history. Hence, I have us as a result of the damage which has been done. always found it difficult to state that the Govern- It was terrible and disastrous of one or two coun- ment has ever done anything that in any way jus- tries to ignore and undermine the United tifies what is happening in these war-torn coun- Nations, the unity of which had built up over the tries at present. years and was so important to world peace. I have chosen to speak in this debate because The reason for some of this action has now some discussions took place on the Order of Busi- been proved to be incorrect as there were no wea- ness with regard to the committee which was to pons of mass destruction. While I am aware that be established and it was suggested that Members this point has been made 1,000 times, it must be were got at. I know that Senator Norris did not made continually because this was the given mean that in any derogatory sense, because he reason for going to war. As there were no wea- is extremely passionate about these issues, as are pons of mass destruction, the premise on which Senator Henry and many other Members. the unilateral action of going to war was taken, However, as for the issue of the committee, no which has endangered and engulfed the entire one got at me. I was not aware of what was hap- world in some ways, did not exist. pening with regard to this committee until I heard 183 Use of Irish Airports: 14 June 2006. Motion 184

´ [Labhra´sOMurchu´ .] in the Chamber. He asked what the committee that Members had been approached to join it, should do and whether it would be investigative. which surprised me. The answer is that as we speak, five hard-working As I stated at the outset, I am glad this motion Members are sitting on a committee, which was was tabled because I believe that whatever is set up by the House to deal with a particular issue done should be done on the floor of this by sifting through the evidence and bringing the Chamber. I am not in favour of the committee information back to it. I am the only Member because it would detract from this Chamber. It who questioned whether this was an appropriate would detract from the Seanad as a House of the way forward and certainly no Government Oireachtas and above all else, it would sideline Member had a problem with it. I refer to the and minimise it. What would be the committee’s Committee on Article 35.4.1° of the Constitution. job? Would it be of an investigative nature? It is examining the evidence available and will Would it be equipped to investigate? Would it be present it to the House, where it will be discussed. independent? Would it bring forward its own This is precisely what is proposed in this ideas and views? I do not support the idea of a instance. It is not in any way different as it is con- committee and if Members are to have a debate, cerned with collating information. What are it should take place on the Chamber floor. Members afraid of? Information is being sought. Despite the most recent report that has been A number of Members, including Senator O´ published regarding the use of the airport by Murchu´ , made a point with which I agree. I do American aeroplanes, I can put my hand on my not know whether there is anything wrong going heart and state that I do not know whether any- on at Shannon Airport. However, as Senator thing irregular is happening. While I am aware of Mooney noted at the outset, my trust and confi- the report, I do not know whether this is the case. dence in what is going on there was demolished Moreover, the isolated incident in respect of the in his words, “in the dust of Shannon Airport last American soldier on a flight a few days ago—— Sunday morning”. How should the allegations be answered? An Leas-Chathaoirleach: The Senator’s time Neither I nor any other Member can do so, has expired. although they can entertain suspicions or be in favour or against a particular opinion. The way Labhra´sO´ Murchu´ : ——has no relationship to deal with a problem is to accumulate as much whatever to the bigger issue which has been information as possible. In this case, and I find under discussion, namely, the question of myself in complete agreement with Senator Brian rendition. Hayes, rather than asking someone in Switzer- land or anywhere else to do it, Members should An Leas-Chathaoirleach: The Minister of State examine what is taking place in their own back- has yet to contribute. yard and should assemble the information. A Government majority could be nominated to Labhra´sO´ Murchu´ : I would much prefer if the committee, as this is not an issue. If evidence Members united in this Chamber and continued was put in front of them, I trust that all Members to work for human rights. They should have con- would make their own minds up. However, no fidence in the Government, which has provided Member in this debate has indicated why this pro- leadership at all times. I genuinely believe that if posal would be a bad thing. The issue of how they are forthright and put their heads above the people in the United States of America might parapet, Members will be providing the best react has been adequately dealt with by Members service possible to those they wish to defend, pro- from all sides of the House. This proposal is not tect and help. an indictment of the citizens of the United States, although it certainly denotes a questioning of its Mr. O’Toole: I thank Senators Norris and leadership. At the very least, a question mark Henry for tabling this motion. I welcome the exists in this respect, The events within Abu Minister of State to the House and I look forward Ghraib took place within the past two years. to his contribution. Moreover, the House debated the International As for the issues raised by Senator O´ Murchu´ , Criminal Court yesterday. For a long time, I concurred with him until the final two minutes Members have been aware of the attitude of the of his contribution. The Senator raised some valid present United States leadership towards the points in an honest fashion. However, I refer to United Nations. the point made earlier by Senator Brian Hayes, These are issues on which we have held differ- that this proposal is intended to adorn and give ent points of view and we need to remind our- added value to the work of the Seanad. This pro- selves of that. Although this opinion might not be posal is what Members envisaged when discussing shared throughout the House, any self-respecting Seanad reform. public representative in a democracy must ques- Senator O´ Murchu´ ’s point was that Members tion what is happening in Guantanamo Bay. We should not take this course of action because it need not question the guilt of the people, but the would devalue and detract from the work of the arrangement by which they are exiled onto House and that the debate should be conducted foreign soil to ensure they have no access to the 185 Use of Irish Airports: 14 June 2006. Motion 186 human and civil rights of the home state. I have of addressing this House on the subject of extra- a question about that. I do not expect people to ordinary rendition. I wish to place on record once agree with me. We know what has happened in again the Government’s opposition to the prac- the past week. If somebody tells me that people tice of extraordinary rendition. This has been the who go on hunger strike or die do so as a pub- Government’s constant position since the exist- licity lark I do not have trust and confidence in ence of this practice was revealed. It has been that suggestion. While I do not know what is hap- made clear to the US authorities on numerous pening in Shannon, there is doubt in my mind occasions, including at the very highest levels. As what I would like to have filled. There is a vac- stated by my colleague the Minister for Foreign uum of information, and nature abhors a vacuum. Affairs, Deputy Dermot Ahern, in Da´il E´ ireann I would like us to put the information together last night, the Irish Government was the first and have it available. government to raise this matter with the US Another issue is that of military law. I listened Government, just as he was the first Minister to to Senator Minihan’s statement. What is the raise it with our EU colleagues last autumn, appropriateness of having two systems of law in under the British Presidency. a country? I followed closely last week’s trial of Extraordinary rendition is a subject in which members of the Irish guards in London and I con- Ireland has taken a leading, proactive role. We clude that the civil rights of soldiers, as citizens, are in an unparalleled position regarding the are not being properly observed in the courts unqualified, categorical assurances that we have martial to which they are subject. Some military received from the US authorities on this matter, people feel they are in a parallel universe to the both in terms of their specificity and of the level rest of a democracy and that they can run a differ- at which they were given. The United States auth- ent system of rights. We have always understood orities have declined to issue similar blanket that to be the case in a war situation where assurances to most other member states. We are people have to engage and summary justice has one of only three countries in this position in to be dealt. However, where we are examining Europe. Those who speak of the Government’s the rights of people and how they are to be doing nothing wilfully overlook the fact that we judged, military law is inappropriate. acted swiftly and decisively to confirm the reali- In Senator Norris’s mild and simple proposal ties of the situation. we are asking to establish a committee to put as Before addressing the substance of the motion much information together as we can and after before us, I wish to emphasise one important fact. this to do what Senator O´ Murchu´ suggested, Since I last spoke in the Seanad, no new evidence namely, bring it here and make our minds up. It has emerged to implicate Ireland in any way in is an intellectual exercise to come to the con- this practice. A number of investigations are clusion that it is better to make decisions based being carried out in Europe into this matter, ana- on information gathered by people we trust and lysing flight patterns, satellite photographs and know, our people, than to try and do so in a vac- other sources of intelligence. Nothing that has uum. I cannot answer the question. been unearthed suggests that prisoners may have I have been careful and have disagreed with been transported through Ireland as part of an Senator Norris on many occasions about Seanad extraordinary rendition operation. business. I have listened to Senator Dooley and I reiterate the point made in Da´il E´ ireann last others talk about it from another point of view night, that in his recent report Senator Dick and I have not agreed with them either. I am in Marty makes no claim that prisoners may have the middle. However, I know the issue raised been subject to extraordinary rendition through here is appropriate in a democracy and would put Ireland. It is encouraging to see that Senator together the process by which we would gather Marty follows the approach of the executive information to allow us to come to our own con- director of Amnesty International in Ireland, Mr. clusions. Although we may not agree on these Sea´n Love, who wrote in February last that those conclusions, it would move us forward. When we who “continue to focus their debate about ‘extra- deny ourselves access to information it seems ordinary renditions’, on whether or not prisoners people see information as a Pandora’s box, which have been or are being transferred through Irish is not always the case. When we have the infor- Airports...are missing the point.” mation it will illuminate the problem and allow us to come to a conclusion. While I would trust Mr. Norris: The Minister’s scriptwriter has Senator O´ Murchu´ to come to a conclusion no either deliberately or dishonestly missed the different to my own if he had the information on point on that. this issue, I cannot allow the House to vote to deny itself the opportunity to gain information Mr. Treacy: Senator Norris has missed the and come to a conclusion. I support the motion. point.

Minister of State at the Department of Foreign Mr. Norris: I have not. Affairs (Mr. Treacy): I welcome this opportunity to address the Seanad again on this issue. As Mr. Treacy: This analysis is confirmed by Senators may recall, in March I had the privilege numerous other sources, with last weekend’s 187 Use of Irish Airports: 14 June 2006. Motion 188

[Mr. Treacy.] Mr. Norris: I did no such thing. I demand that newspapers carrying headlines such as ‘’No rubbish be withdrawn. Show where it is in the reason CIA would use Shannon for prisoners”. record. The Minister of State is a disgrace and As Mr. Tom Clonan, formerly of our Defence represents a discredited Government. Forces, said last week on the radio: “It’s ludicrous to imagine that the Americans would land at An Leas-Chathaoirleach: Senator Norris will Shannon with a (high-value) prisoner”. have a right to reply, he is out of order.

Mr. Norris: The Minister had to add in the Mr. Treacy: I did not interrupt Senator Norris, “high-value”. I listened carefully to what he said.

Mr. Treacy: In opposing the motion before this Mr. Norris: The Minister of State did not House I will, in particular, address two points. understand me or has deliberately misinterpreted The first is the publication of a recent report me. He should withdraw his comment. which is not, as is suggested by the motion before this House, of the Council of Europe, but of a An Leas-Chathaoirleach: Senator Norris will rapporteur of one of its committees, Senator have a right to reply. Marty. I will then address the State’s fulfilment of its positive obligations to prevent torture and Mr. Treacy: The Senator tried to sustain a case other abuses. In so doing I also hope to clear up by building up a story that if we were category the misunderstanding that has led to the A we were to be damned. The facts are, as we erroneous suggestion made in the Private maintained, we are not in any category as would Members’ motion that there is confusion about have been revealed had Senator Marty contacted the Garda Sı´ocha´na’s right to investigate these the Government for clarification which his now aircraft. released draft report requires him to do. These are the facts and Senator Norris is bending a story Mr. Norris: The Minister should talk to the two on a draft report that is inconclusive and has not detective superintendents who were sent to see been referred to the various agencies that are me by the Garda Commissioner. obliged to be consulted before a conclusion is arrived at on a final report to be presented before Mr. Treacy: I agree that, despite the pervasive the Parliamentary Assembly of the Council of lack of hard evidence, aspects of Senator Marty’s Europe. report are deeply disturbing. In particular, Mr. Norris: Bluster. detailed descriptions of torture and ill-treatment of prisoners make harrowing reading. The Mr. Treacy: That is the position. That is de Government is, of course, completely opposed to facto. torture, but that is not the issue. Senator Marty’s report produces no evidence to implicate the Mr. Norris: Does the Minister of State know Government in the practice. As was noted in the what de facto means? Irish Examiner over the weekend with respect to Ireland, “there is no proof of anything”. Mr. Treacy: I certainly do. I may not have the On top of the lack of evidence, there is a lack same amount of education as Senator Norris, but of a clear chain of reasoning. Instead there are I have some. cursory assertions, including one that Ireland A draft resolution will be put before a plenary “could be held responsible for collusion” for meeting of the Parliamentary Assembly on 27 being a “stopover” for flights, involving the June. unlawful transfer of detainees. On behalf of the Government I reject this assertion, which seems Mr. Norris: Next the Minister of State will tell to be based, as I will go on to explain, on an us he went penniless to school with a sod of turf implausible, ill-founded analysis of what might under his arm. conceivably have been possible for us to do. Senator Marty fails to take account of our Mr. Treacy: It has been the Government’s con- opposition to extraordinary rendition and the cat- sistent position that we will consider carefully egoric assurances which we have received that it with partners any specific and workable recom- does not take place through Ireland. To allege mendations that may be made by either the collusion without addressing either of those Council of Europe or the European Parliament points is grossly unfair. To compound this, in this area. We have made this quite clear on neither Senator Marty nor anyone acting on his every occasion. I anticipate that much of what behalf approached the Government or our rep- both bodies will have to say will require resentatives on this matter. As I noted at the out- coordinated action at a European level, if it is to set of my speech, the Council of Europe commit- be effective. The Government will, of course, tee on legal affairs has not adopted Senator maintain its position at the forefront of efforts to Marty’s report. Senator Norris clearly implied ensure that international law is adhered to in all that category A was the worst category. aspects on this matter, and that any gaps iden- 189 Use of Irish Airports: 14 June 2006. Motion 190 tified in the existing regulatory regimes are filled Government’s position on this matter have sug- with utmost urgency. gested that no right of search exists, and that the Some commentators, including some in this Garda authorities have been instructed not to House, have claimed that every type of diplo- search aircraft. They suggest this despite having matic assurance is now suspect or insufficient. As been provided with long and detailed documents the Minister for Foreign Affairs explained yester- outlining the relevant powers of search and in the day, such a development would represent a revol- face of Garda and DPP investigations into com- ution in international relations. In the Govern- plaints that have revealed nothing. Their issue is ment’s view, it is wholly unwarranted. not, if the truth be told, with the procedures used In its response to the questionnaire circulated to investigate, but with the results. by the Secretary General of the Council of Regarding the practicalities of search, identifi- Europe, Mr. Terry Davis, the Government out- cation by NGOs and the media of aircraft that lined in very considerable detail its view of our are alleged to have been involved in extraordi- international law obligations relating to our posi- nary rendition has been possible only months, at tive obligation to prevent torture. In his prelimi- the earliest, after such operations are said to have nary analysis of the responses received, the Sec- taken place. Furthermore, civilian aircraft of the retary General made no indication that he had type in question are not, under international law, any objection to our Government’s position on required to apply for permission to land, meaning this matter, though it was clear from his analysis that a transited country may have very little that he had read our response fully. notice of the arrival of such an aircraft. In essence, as Deputy Dermot Ahern made In this context, a regime of random search and clear in a letter earlier this year to the Irish inspection would be of very limited value in Human Rights Commission, it is the Govern- achieving the desired goal. Moreover, given that ment’s view that there is a misunderstanding and at worst the allegations are that such aircraft misinterpretation of the relevant international passed empty through Ireland, it is impossible to case law. This does not in fact deal with assur- see how even if such aircraft were to be identified ances generally but rather, and explicitly, with and searched, the outcome of such searches assurances given about the treatment of part- would shed any light on the matter. It is far more icular individuals, extradited or expelled from effective, and in the Government’s view better one state to another. fulfils our positive obligations, to have sought and Contrary to what has been asserted by some, received specific factual and unqualified assur- the European Court of Human Rights has never ances in the manner that we have done. held that a factual assertion by a state on a matter The Government’s approach to the subject of directly within its full control cannot be relied extraordinary rendition is one of continued upon. It is highly relevant in this context to note engagement with the United States. This that the court has stated its respect for the comity approach has allowed us to raise our concerns of nations, and has also held that the convention early, both bilaterally and in an EU framework, must be interpreted in harmony with other rules to receive considered responses, and ultimately of international law of which it forms part. the Government believes, to fulfil our obligations Suggestions of collusion and failure to fulfil under both international and domestic law in the positive obligations may have some basis when most comprehensive manner possible. applied to states which wilfully ignore potential I would like to brief Senators on a recent, quite illegality on their territory, but that is clearly not separate, incident at Shannon and on how the the case with Ireland. We were the first Govern- Government has reacted to it. The Minister for ment, when rumours of extraordinary rendition Foreign Affairs informed Dail E´ ireann yesterday emerged, to raise concerns about the matter with evening that the Department of Foreign Affairs US authorities. We were the first Government to was contacted by the US Embassy and informed demand assurances that our territory would not that last Sunday, 11 June, a civilian aircraft be used for such purposes. To speak of a failure landed at Shannon for a technical refuelling stop to act, which is the essence of the charge on posi- en route from Kuwait to the United States. tive obligations, against such a background of Among other unarmed military personnel, the pro-active intervention, is simply unreasonable. aeroplane was carrying a US marine convicted of The Government cannot agree with the sugges- a minor breach of the US military code. He was tion that our positive obligations under inter- in military custody and was wearing military national law may require that searches of aircraft fatigues. be carried out. It has repeatedly been made clear While the transfer of such a prisoner would that the Garda Sı´ocha´na has the powers it needs have been lawful under both international and to investigate all reasonable allegations of illegal domestic laws, it requires the consent of the Mini- activity. There is no legal bar to searching civilian ster for Justice, Equality and Law Reform. The aircraft of the type allegedly involved where there US authorities did not seek such consent and this is a basis for doing so. failure, though inadvertent, is unacceptable. Regarding suggestions of deliberate ignorance The US ambassador was summoned to Iveagh and wilful blindness the issue of rights of search House, where the Minister outlined our very provides a useful example. Those who oppose the grave concerns. The ambassador confirmed the 191 Use of Irish Airports: 14 June 2006. Motion 192

[Mr. Treacy.] A was the most serious category. Show me the sequence of events and made clear that the fail- record where it states that. ure to seek consent arose from an administrative error. He conveyed his deep regret for the breach Mr. Treacy: We should examine it. of procedures and undertook to urgently advise his authorities in the US of the Government’s Mr. Norris: If the Minister of State cannot read, views. He also confirmed his willingness to review it is his problem and it is certainly not mine. the situation immediately, with a view to ensuring that there is no recurrence. An Leas-Chathaoirleach: The Senator, with- The Cabinet discussed the matter yesterday, out interruption. and it was decided to make public our grave con- cern. We have asked for a full written report from Mr. Norris: If the Minister of State did not the US Embassy. In addition, to ensure that bother to listen it is also his problem. appropriate steps are taken to prevent any recur- The Minister of State also made a comment which is deliberately, clearly and demonstrably rence of this incident, we will engage in further untrue. Just five minutes ago he stated there was discussions with the US authorities on this matter. no single case in the Marty report which had any While I would reiterate that this incident is connection with Ireland. That is absolute tripe. unconnected to allegations of extraordinary ren- I present the case of Abu Omar. Senator Mar- dition, it is essential, not least in the interests of ty’s explanatory memorandum to the report public confidence, that the Government take states: appropriate steps in response to such a breach. My colleague, the Minister for Foreign Affairs, At midday on 17 June 2003, Hassam Osama Deputy Dermot Ahern, already announced Mustafa Nasr, known as Abu Omar, an Egyp- measures in this regard yesterday. tian citizen, was abducted in the middle of I have listened with interest to the debate and Milan. Thanks to an outstanding and tenacious Senator Norris has already quoted from the investigation by the Milan judiciary and the Marty report. His quotes from that report regard- DIGOS police services, Abu Omar’s is ing the inhumane treatment of prisoners are not undoubtedly one of the best-known and best- connected with any incidents in this country. I documented cases of “extraordinary ren- share all Senators’ views on reports of inhumane dition”. Via the military airbases at Aviano treatment and torture of prisoners. This Govern- (Italy) and Ramstein (Germany), Abu Omar ment abhors such practices and has made that was flown to Egypt, where he was tortured clear regarding the use of extraordinary ren- before being released and re-arrested. To my dition. This point has been made in this country, knowledge, no proceedings were brought in the US, in Europe and at the UN and other against Abu Omar in Egypt. The Italian international fora. We are proud to do so and we judicial investigation established beyond all reasonable doubt that the operation was are consistent on this situation. The Government’s consistent and long-stand- carried out by the CIA (which has not issued ing position on the issue of extraordinary ren- any denials). The Italian investigators likewise dition is quite clear. We utterly condemn it, in no established that the presumed leader of the abduction operation — who had also worked way do we facilitate it, and looking as the American consul in Milan — was in 7 o’clock to the future we are willing, with our Egypt for two weeks immediately after Abu partners, to consider any practicable Omar was handed over to the Egyptian auth- and specific proposals which the Council of orities. It may safely be inferred that he con- Europe, the European Parliament or any other tributed, in one way or another, to Abu Omar’s body may make to reduce the possibility of future interrogation. The proceedings instituted in cases occurring. Milan concern 25 American agents, against 22 We utterly reject any allegation of collusion in of whom the Italian judicial authorities have this practice. Indeed we reject any suggestion, issued arrest warrants. Abu Omar was a politi- which I have shown by the facts, to be groundless, cal refugee. Suspected of Islamic militancy, he that we have failed to meet our obligations. had been under surveillance by the Milan Ireland’s efforts in this area have been prompt, police and judicial authorities. As a result of timely and effective. I urge the Senators to reject the surveillance operation, the Italian police the motion. were probably on the verge of uncovering an activist network operating in northern Italy. Mr. Norris: That is one of the most shabby and Abu Omar’s abduction, as the Milan judicial disgraceful performances I have ever witnessed a authorities expressly point out, sabotaged the Minister of State come out with in this House. I Italian surveillance operation and thereby dealt am astonished it has come from this man. I did a blow to the fight against terrorism. Is it con- not think the Minister of State would sink so low. ceivable or possible that an operation of that I wish to correct some of his comments. kind, with deployment of resources on that How dare the Minister of State suggest that I scale in a friendly country that was an ally deliberately highlighted and stated that category (being a member of the coalition in Iraq), was 193 Use of Irish Airports: 14 June 2006. Motion 194

carried out without the national authorities — The principle of trust has been invoked by or at least Italian opposite numbers — being other governments. This is the case with informed? ... There has recently been a signifi- Ireland, for example: the government has cant new development in the investigation by stated there was no reason to investigate the the Milan prosecuting authorities, however: an presence of American aircraft, since the United agent belonging to an elite Carabinieri unit has States had given assurances. admitted taking part in Abu Omar’s abduction The Government conveniently neglected to men- as part of an operation co-ordinated by the tion or give any reference to the attitude of the SISMI, the military intelligence services. Venice Commission. That flight was refuelled at Shannon. Will the Minister of State listen to what has been said, and An Leas-Chathaoirleach: The Senator has one will he for once honestly respond? minute.

Mr. Treacy: Was he on board? Mr. Norris: The view of the European Union was that it was absolutely essential that there be Mr. Norris: I never stated I had any evidence legally enforceable guarantees. that prisoners were being brought through It is not surprising, and we are not the only Shannon Airport. I made the point, which has country involved, and certainly not the worst been clearly proved time and again in a number offender. I never stated that and I bitterly resent of cases, that the aircraft were refuelled. That that such a lie was told in this House. I demand constitutes collusion. it to be withdrawn. With regard to what was said about assurances, they are not worth a damn. Both the Minister of Mr. Treacy: I would never want to tell a lie State and I know that. The Minister of State about anybody. My interpretation was—— knows the definition of torture given by Condoleezza Rice, even with regard to the case An Leas-Chathaoirleach: The Minister of State of Guantanamo, where there is a degree of visi- cannot come in. Senator Norris should conclude. bility, was that hooding, white noise and sleep deprivation were used. The Minister of State Mr. Norris: I accept the Minister of State’s should be ashamed to sit there as a member of withdrawal. Even the Swedes, neutral during the Fianna Fa´il and a Government which took the war and who did such wonderful work, collabor- United Kingdom Government to the European ated in one of the worst examples of rendition. Court of Human Rights on those three grounds There were many decent speeches on the exactly and tried to defend it. Government side of the House. Even people It is a shame on this House. I am disgusted. whom I always thought were very much against There is a case for reform of the Seanad. The what we say on this side of the House were reform should involve removing these rotten con- reasonable to a certain point. Then there was a stituencies whose candidates are elected by fewer lack of logic. I was shocked and surprised by what than 1,000 county councillors. We should have Senator Minihan had to say. We are only allowed some real democracy, as is evident with the uni- to take logic so far, and then it will be ignored. versity seats. We are elected by a real number of My old pal Senator Daly seemed to suggest that real voters without vested interests. because there was an atrocity on 11 September 2001, the Americans could do what they liked as Mr. Treacy: If everybody voted there would be there was only a small number of people a change of personnel straight away. involved.

Mr. Norris: I will give a further comment. The Mr. Daly: That is incorrect. Minister of State quoted the business of assur- ances which were given. It has been made Mr. Norris: Perhaps we should look at the expressly clear by the Venice Commission that Official Report. those assurances are not worth anything unless they are legally enforceable against the country Mr. Treacy: The Senator is selective. giving the assurances. Paragraph 233 of the explanatory memorandum states: Question put.

The Seanad divided: Ta´, 19; Nı´l, 28.

Ta´

Bannon, James. Cummins, Maurice. Bradford, Paul. Feighan, Frank. Browne, Fergal. Finucane, Michael. Burke, Paddy. Burke, Ulick. Hayes, Brian. Coghlan, Paul. Henry, Mary. Coonan, Noel. McDowell, Derek. 195 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 196

Ta´—continued

McHugh, Joe. O’Toole, Joe. Phelan, John. Norris, David. Tuffy, Joanna. O’Meara, Kathleen.

Nı´l

Brady, Cyprian. MacSharry, Marc. Brennan, Michael. Minihan, John. Callanan, Peter. Mooney, Paschal C. Daly, Brendan. Morrissey, Tom. Dardis, John. Moylan, Pat. ´ ´ ´ Dooley, Timmy. O Murchu, Labhras. O’Brien, Francis. Fitzgerald, Liam. O’Rourke, Mary. Glynn, Camillus. Phelan, Kieran. Hanafin, John. Scanlon, Eamon. Kenneally, Brendan. Walsh, Jim. Kett, Tony. Walsh, Kate. Kitt, Michael P. White, Mary M. Leyden, Terry. Wilson, Diarmuid. Lydon, Donal J.

Tellers: Ta´, Senators Henry and Norris; Nı´l, Senators Minihan and Moylan.

Question declared lost. Mr. P. Burke: Senator McDowell raised very important points on the licensing arrangement for Road Traffic Bill 2006: Committee Stage foreign drivers in Ireland. Will a reciprocal (Resumed). arrangement apply to Irish drivers in other parts of Europe, be it in England, Germany, Spain or SECTION 8. France?

Question again proposed: “That section 8 stand Mr. Gallagher: Section 8 recognises foreign part of the Bill.” licences and provides that the Minister may, by order, recognise a driving licence issued by Mr. McDowell: I wish to explore the matter of another country for the purpose of exchanging it the recognition of foreign driving licences. for an Irish one. This does not happen automati- Section 8 sets out a process whereby driving cally. Driving licence exchange arrangements licences issued in other jurisdictions can be operate in respect of licences issued by member exchanged for Irish driving licences. I was sur- states of the European Union and European prised when I read this. I am not clear on the Economic Area. These arrangements are based background and perhaps the Minister of State on provisions of the Road Traffic (Licensing of will help me with it. My understanding was that Drivers) Regulations 1999. European Union issued driving licences were On the issue of exchange arrangements per- recognised in Ireland without a need for taining to licences issued by states outside the exchange. Will the Minister of State explain the European Union, a number of countries, such as purpose of the section? Is it intended purely for Australia, South Africa, Switzerland, South those who hold driving licences issued outside the Korea, Japan, Jersey and the Isle of Man, have European Union? Must one exchange licences in been declared recognised states for licence any event? exchange purposes by order under the regu- Having teased that matter out we can move on lations. It is now considered that the power in the to the more important issue as to the recognition regulations to declare such countries as recog- of penalty points and offences committed in other nised states may be ultra vires and require jurisdictions. It seems this issue is becoming much primary legislative provision and therefore more important in terms of enforcement. As the section 8 is included in the Bill. numbers of foreign drivers and foreign cars on Foreign licences are only recognised for the road increase, it is important that we be in a exchange purposes where the licensing system in position to exchange information with the auth- the foreign country in question meets the stan- orities in other jurisdictions on offences commit- dards required by the EU directive on driver ted in those jurisdictions. It is important that we licensing and where there is reciprocal recognit- be in a position to recognise the equivalent of ion of Irish driving licences in that country. It is penalty points and disqualifications imposed in interesting to note that Great Britain and other jurisdictions. What is the purpose of the Northern Ireland do not have a reciprocal section? Having recognised the validity of foreign arrangement with Ireland in respect of penalty licences, are we in a position to recognise dis- points. We are in discussions with the United qualifications imposed by foreign courts? Kingdom at official level to bring one about and 197 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 198

I have discussed the matter with my UK counter- SECTION 10. part. There should be a reciprocal arrangement and it is important that it includes both the Mr. P. Burke: I move amendment No. 66: Republic and Northern Ireland. In page 12, line 30, to delete “ ‘licence’ ” and The recognition of penalty points throughout substitute “ ‘licence’ ”. Europe is very much at the embryonic stage and the Minister and I would like to see further devel- I wish to hear the Minister of State’s view on this opments in this regard. If a foreign licence is technical amendment. exchanged, the licensee then holds an Irish licence but a licence issued in another member Mr. Gallagher: I am accepting the amendment state does not attract penalty points awarded on and I thank the Senator for bringing the matter Irish roads. We are anxious to pursue this and I to my attention. hope some progress can be made at European level. Mr. P. Burke: I thank the Minister of State.

Mr. McDowell: What are the current arrange- Amendment agreed to. ments? Must a French licence be exchanged in Ireland or can one simply drive here with a Mr. P. Burke: I move amendment No. 67: French licence? In page 12, line 41, to delete “the securing” and substitute “systems that ensure”. Mr. Gallagher: On can drive with the French licence if one wishes. A tourist would not be I wish to hear the Minister of State’s view on anxious to forfeit his or her French licence just as this amendment. an Irish citizen on holidays in France would not be anxious to forfeit his or her Irish licence. One Mr. Gallagher: I understand the Senator’s cannot hold more than one licence and one must motivation for tabling this amendment but the forfeit one or the other. existing provision is sufficiently broad to allow regulations to be made that specify the procedure Mr. McDowell: If a French person using a and checks that must be in place to ensure that French licence is awarded penalty points while not more than one licence can be issued in driving in Ireland, do these points attach to the respect of a given licence category. The proposed French licence? If not, I would not bother to amendment would be somewhat restrictive and exchange my licence for an Irish one if I were confined to certain systems. It may not include all coming here from France to live for a year. administrative arrangements put in place to achieve the desired objective. Mr. Gallagher: The penalty points are recorded in the national driver file for the purpose of hav- Amendment, by leave, withdrawn. ing them on record but they are not recognised by the French authorities. Amendments Nos. 68 to 75, inclusive, not moved. Mr. McDowell: I appreciate that. Are they recognised in Ireland in respect of the French Mr. P. Burke: I move amendment No. 76: licence? If a French citizen living in Ireland for In page 13, lines 26 and 27, to delete para- two years commits a number of driving offences graph (p). exclusively in Ireland and is awarded 12 penalty points, does his possession of a French licence The purpose of this amendment is to delete para- make him immune? graph (p), which alludes to the fees licensed instructors may charge for courses of instruction. Mr. Gallagher: If he accumulates 12 points, he It is very restrictive to legislate for the fee one is disqualified from driving on Irish roads. can charge because there are different standards and levels of driving instruction. I hope all Mr. McDowell: Although he has a French instructors will be teaching the same skills but licence? some driving schools will have single operators while others will operate on a national basis. Mr. Gallagher: Yes. Some will feel they must charge more than others because they believe they are operating to a Mr. P. Burke: Is that included in this Bill or higher standard. will it be achieved through regulation? The Minister of State should accept my amend- ment because the requirement that all instructors Mr. Gallagher: It will be done by regulation. must charge the same fee, as implied in the exist- ing provision, is anti-competitive. Some operators Question put and agreed to. will feel they are better than others and therefore entitled to charge more. Others may believe they Section 9 agreed to. should be charging much less and therefore it is 199 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 200

[Mr. P. Burke.] In page 16, line 13, to delete “and” and sub- anti-competitive also. I ask the Minister of State stitute “and, subject to subsection (5),”. to accept the amendment. Mr. Gallagher: The purpose of this drafting Mr. Gallagher: Paragraph (p) outlines the fees amendment is to make it clear that a person who licensed instructors may charge for such courses is caught driving while disqualified is liable to of instruction. This enables the fees to be charged heavier penalties in the new subsection (5) rather by driving instructors for compulsory courses of than the lesser penalties in subsection (2). instruction to be regulated. The main purpose of the provisions in the previous paragraphs (m), Amendment agreed to. (n), (o) and also (p) is to provide for the introduc- tion of compulsory initial practical training for Mr. P. Burke: I move amendment No. 90: motor cyclists. That is not an unreasonable pro- vision to include in the Bill as it seeks to control In page 16, to delete lines 15 to 24 and substi- a charge which will be levied on an individual to tute the following: meet regulatory requirements. I recognise, “(a) a person who contravenes subsection however, that there may be concerns that the (1) is guilty of an offence and is liable on imposition of such a control may dissuade service summary conviction where at the time of the providers from offering the necessary training. I commission of the offence— will consider that aspect before Report Stage tomorrow and come back to the Senator on it. I (i) he or she had been the holder of a see the danger of such a control being dissuasive, driving licence (other than a learner which is not what we want to achieve. We want to permit) which had expired beyond its entice people to do this. I will consider the issue. period of validity for a period of not more than 12 months before the commission of Mr. P. Burke: In view of what the Minister of the offence, and State said, I will withdraw the amendment with a (ii) he or she has received adequate view to resubmitting it on Report Stage. warning from the licensing authority that Amendment, by leave, withdrawn. the driving licence (other than a learner permit) has expired beyond its period of Amendments Nos. 77 to 86, inclusive, not validity, moved. to a fine not exceeding \1,000.” Question proposed: “That section 10, as This amendment places an onus on the local auth- amended, stand part of the Bill.” ority, where a person’s licence is out of date and he or she is to be prosecuted, to notify the holder Mr. P. Burke: Section 10(2)(q) states that the of the licence that the licence is out of date. There fee is to be paid to a licensing authority in respect should be some format for notifying people that of the supply by the authority of information their licences are out of date. relating to a licence. Is that a new charge? Does it mean that when a person applies for a licence Mr. Gallagher: A licence is a very important he or she must pay a fee to get the information? document to each and every individual. I appreci- ate the Senator’s concern that licence holders Mr. Gallagher: That provision for a charge may not be aware that their licence has expired already exists. I believe it is \6 if one requires and that they should receive reminders from local this information. authorities. Arrangements are now being made with the Department of the Environment, Heri- Question put and agreed to. tage and Local Government, which holds and administers the national driver file to which we Amendment No. 87 not moved. have access, to have renewal notices issued to licence holders. Section 11 agreed to. It should be noted that a significant number of licence holders will have changed address in the SECTION 12. ten-year period of their licence and will not Government amendment No. 88: receive the notice if they have moved. If they have moved there is an obligation to advise the In page 16, line 9, to delete “(1)”. local authority of their new address. If an amend- ment along the lines proposed by Senator Burke Mr. Gallagher: This amendment corrects a were inserted, people who had let their licence typographical error. lapse could plead that they had not received a renewal licence and that would weaken this pro- Amendment agreed to. vision considerably. We have catered in the Bill for what Senator Government amendment No. 89: Burke is proposing in that licences will issue but 201 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 202 it is the responsibility of individuals to ensure In page 17, before section 13, to insert the they have a current licence. To accept this following new section: amendment would put too great an onus on us 13.—The Principal Act is amended by the when we are making arrangements with the insertion the Principal of the following new Department of the Environment, Heritage and section after section 55: Local Government to issue notices. That goes part of the way towards catering for the principle “55A.—(1) A person shall not park a in Senator Burke’s amendment. vehicle— (a) whose weight unladen exceeds Mr. P. Burke: Local authorities notify people maximum permitted weight, when their motor tax is due for renewal. The local authorities would be well capable in this case of (b) whose weight laden exceeds notifying drivers that their licence is out of date maximum permitted weight, or and due for renewal. (c) any part of which transmits to Mr. Gallagher: They will be doing that. As I ground greater weight than maximum per- explained, arrangements are being made with the mitted weight. Department of the Environment, Heritage and (2) A person who contravenes subsection Local Government, which holds the national file, (1) of this section shall be guilty of an to have renewal notices issued to holders. I am offence and shall be liable on summary sure they will receive those but if they have conviction— changed address there is an obligation on them (a) in the case of a first offence, to a fine to inform the relevant local authority. If they do not exceeding \80, or not do that and the licence is not received, they could use the defence that they did not receive it (b) in the case of a second or any sub- through no fault of the Department of the Envir- sequent offence, to a fine not exceeding onment, Heritage and Local Government, the \200 or, at the discretion of the court, to local authority or the file. Only those who change imprisonment for any term not exceeding address, therefore, would have a difficulty. If they three months or to both.”. were waiting on a cheque from a Department This amendment makes it an offence to park in they would readily inform the relevant Depart- an area in which weight restrictions are in place. ment. It is only a matter of them informing the For example, lorries above a certain weight local authority that they have moved, and I should not be allowed to park in a housing estate. believe we are talking about a very small percent- Amendment No. 98 seeks to increase the number age of people. of penalty points for vehicles driving in weight Amendment, by leave, withdrawn. restricted zones. Amendment No. 99, I believe, is based on amendment No. 85. Amendment No. 91 not moved. There should be restrictions imposed as regards some areas, for example housing estates, Government amendment No. 92: as I have outlined, where vehicles above a certain weight may not be parked. The amendment makes provision for penalty points to be imposed In page 17, to delete lines 1 to 3, and substi- where such an infringement occurs. tute the following: “in lieu of the penalty mentioned in section Mr. B. Hayes: I want to speak to amendment 102, is liable to a fine not exceeding \5,000 or No. 98, which is tabled in my name. The Minister to imprisonment for a term not exceeding 6 of State will be aware that in the suburban set- months or both.” tings of large cities such as Dublin, Cork, or wherever, the local authorities are regularly asked by community organisations whether three- Mr. Gallagher: The purpose of this amendment tonne weight restriction areas, for instance, may is to correct a typographical error. be put in place. The local authority establishes a Amendment agreed to. committee, gets Garda advice and a decision is taken. Let us say a three-tonne weight limit zone Section 12, as amended, agreed to. is put into a residential area to prevent heavy goods vehicles and lorries driving through a NEW SECTION. locality where ostensibly there are houses and communities. I am asking the Government, in this An Cathaoirleach: Amendment No. 93 is in the amendment, to establish penalty points for any name of Senator Burke. Amendments Nos. 98 heavy goods vehicle above a certain weight if it is and 99 are related and may be taken together found to be encroaching on an area. It is evident by agreement. the Garda does not enforce this. Penalty points would at least be a significant Mr. P. Burke: I move amendment No. 93: arm of enforcement in terms of a commercial 203 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 204

[Mr. B. Hayes.] uled to attract two penalty points on payment of company. The drivers, in effect, would not be a fixed charge and three penalty points on convic- receiving the penalty points, but the company. It tion in court. Senator Brian Hayes proposes in is important to do this, not just from an enforce- this amendment two penalty points and a charge ment, but also from a community viewpoint. The or four penalty points on conviction in court. We community looks to the local authority to enforce both agree and accept the principle. We both the law in this regard, but it is not being done. agree that it should be two penalty points on pay- I ask the Minister of State to give consideration ment of a fixed charge and otherwise three pen- to this, to extend the penalty points for this spec- alty points, whereas Senator Brian Hayes says it ific area, so that if heavy goods vehicles and lor- should be four penalty points. In line with the ries are rattling through housing estates over principle involved, I believe that the three pen- traffic calming measures, barriers, etc., where alty points will be effective. children are playing, there should be very strict enforcement. The way to do that is through pen- Mr. Morrissey: I ask the Minister of State to alty points. It has been put to me by one organis- give serious consideration to Senator Brian ation in my area and it has asked me to seek to Hayes’s amendment. As an urban representative, get it incorporated into the legislation. If it is not I believe this is more prevalent in cities than in possible by way of this amendment, perhaps the rural areas. As an urban representative, however, Minister of State might give the matter some as with Senator Brian Hayes, seeking to have thought and come back to it in the other House. these permits or bans put into local areas, the Nonetheless, it would be a sensible extension of Garda seem to ignore the problem for some the role of the penalty points system. It would put reason and local residents do not even ring any pressure on the Garda to enforce the law once more to complain that vehicles over the limit are the local authorities had established three-tonne parked in their areas. Oftentimes they park in weight limit restriction areas. playgrounds or adjoining tennis courts and they take up large areas. These are often articulated Mr. Gallagher: I am dealing, first of all, with vehicles which are parked for entire weekends in amendment No. 93 in the name of Senator Paddy play areas and cause grave inconvenience. They Burke. It proposes that a new section, section will have gone by 6 a.m. on a Monday, having 55A, be inserted in the Road Traffic Act 1961 to arrived at 8 p.m. on the previous Friday. I believe provide that a person shall not park a vehicle the present system is not working adequately and whose weight exceeds a maximum permitted I ask the Minister of State to seriously consider weight and to specify the penalties to apply on Senator Brian Hayes’s amendment. conviction on the grounds of a contravention of the parking prohibition. The present position is Mr. B. Hayes: The key problem is peak traffic that in respect of the use of a vehicle or a combi- time for those vehicles going through areas. As nation of vehicles on a public road, the Minister Senator Morrissey has said, there are other prob- of Transport has regulated under section 12 of the lems, associated with people parking those Road Traffic Act 1961, specifying the maximum vehicles over a weekend or for a day or so. We permitted unladen weight, the maximum permit- need to send out a very strong message in the ted laden weight and the maximum permitted legislation that this is not permissible. Businesses, weight to be transmitted to ground by any part wherever they operate, have a responsibility to of a vehicle. It is an offence for any person to abide by the law. The way to get the message contravene the permitted maximum weights pre- through to businesses which continually flout the scribed by the Minister. If he or she is not the law in this area is to indicate that it will come owner of the vehicle, such owner and the person down heavily on them. If their drivers are caught shall each be guilty of an offence. A section 12 in residential areas they will be fined, receive contravention is scheduled to be a penalty point penalty points and the law will come down hard offence. on them. That is the only way they will take any The offence of using a vehicle that exceeds the notice and that is the message the Bill needs to maximum permitted weight in any of the circum- send out. I ask the Minister to examine the matter stances regulated for is scheduled in the First again rather than giving the House a definitive Schedule to the Road Traffic Act 2002 to attract view on it now. one penalty point on payment of a fixed charge It is interesting that there was some disagree- and three penalty points on conviction in court. ment in what I had heard from the Department Amendment No. 98 in the name of Senator Brian and from our own people on this issue. It has now Hayes relates to the First Schedule to the Road been clarified that penalty points exist, but I believe they are not enough. We need to come Traffic Act 2002, which sets out the offences to down heavily in this regard. We are not coming which penalty points can be applied and proposes down heavily on drivers because they are working a change as regards the existing provision in for a business. However, they cause enormous respect of offences under section 12 of the Road encroachment in large-scale residential areas, Traffic Act 1961. At present the three offences particularly around peak-time. They know the under section 12 of the Act of using a vehicle that rat-runs and the short-cuts and they use them to exceeds the maximum permitted rate are sched- best effect. They go over speed bumps and will 205 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 206 use whatever roadways are available even it) which may not be prosecuted on indict- though, as Senator Morrissey said, the roads may ment, or be beside play areas. It is not acceptable in this day and age that large articulated lorries can be (ii) any regulation made by the Minister allowed to go through residential areas. I ask the under the European Communities Act Minister of State to give the matter further con- 1972 providing for the carriage of mer- sideration. chandise by road or the carriage of passen- gers by road or the issuing of transport Mr. Gallagher: Perhaps it is a fixed charge we discs, should be looking at. If the companies are pre- as may be declared by the Minister by regu- pared to pay the fixed charge, both Senator Brian lations to be fixed charge offences,”. Hayes and I are at one on this, two penalty points plus a fixed charge. For those who are not pre- Mr. Gallagher: The Minister for Transport has pared to pay the fixed charge, I believe in this power to declare offences to be fixed-charge regard that it is a matter of enforcement and that offences for the purpose of enforcement under the two penalty points and a fixed charge should section 103 of the Road Traffic Act. The purpose have the desired effect. I fully agree that these of these amendments is to amend section 14 of areas should not be used as rat-runs. We are all the Bill to extend the range of offences that can familiar with the sign that states that the be declared to be fixed-charge offences, and to maximum weight is 3.5 tonnes and that there is provide that offences under the Road Transport no entry for these vehicles, except in certain cir- Acts or any statutory instruments implementing cumstances, such as pick-up points for furniture certain European legislation can now also be removals. I appreciate that is not the point being deemed to be fixed-charge offences, subject to made by the Deputy. They should not be going regulations being made by the Minister. These through residential areas where children are play- offences relate to road haulage and passenger ing, nor should they parking there overnight or transport sectors. This would enable departmen- at weekends. tal transport offices — soon to be part of the It is at the discretion of the Minister to increase Road Safety Authority — to issue fixed-charge penalty points. If it is required to do that, I will notices to hauliers or bus operators who are recommend it to the Minister, but there is very stopped at checkpoints and are found to be little between us on this issue. breaking road transport licensing laws. I intend to table two further amendments to Mr. P. Burke: I agree with Senator Hayes. this section on Report Stage. One is a minor tech- There are two issues in these amendments, nical amendment, while the other will rectify an namely, heavy goods vehicles doing rat-runs and omission in the provisions of the Bill before us. I parking in residential areas. A licence could be believe these amendments will be welcomed by issued to cover trucks involved in furniture the sector as minor offences should be dealt with removals, housing construction and so on. by fixed charges and penalties rather than in court. Mr. Gallagher: There are delivery dockets that can be used as proof. There should be rigorous Amendment agreed to. enforcement of this, which is a matter for another agency. Government amendment No. 95: Mr. B. Hayes: The Minister of State has told In page 17, line 40, to delete “paragraph (a)” the House that the Minster can alter the penalty and substitute “paragraph (a)or(b)”. points without changing the primary legislation. Is that correct? Amendment agreed to.

Mr. Gallagher: Yes. Government amendment No. 96: Amendment, by leave, withdrawn. In page 17, after line 43, to insert the following: Section 13 agreed to. “(b) by inserting after subsection (3) the following: SECTION 14. “(3A) In a case referred to in subsection An Cathaoirleach: Amendments Nos. 94 to 96, (2), if the offence is an offence referred inclusive, are related and may be discussed to in subsection (1)(b), the references in together. subsection (2) to a member of the Garda Sı´ocha´na are to be read as including refer- Government amendment No. 94: ences to a transport officer (within the meaning of section 15 of the Road Trans- In page 17, between lines 28 and 29, to insert port Act 1986).”. the following:

“(b) such offences under— Amendment agreed to. (i) the Road Transport Act 1933 (including any Act construed as one with Section 14, as amended, agreed to. 207 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 208

SECTION 15. Mr. McDowell: What is a speed limitation device? Government amendment No. 97: Mr. Gallagher: It limits the speed of the In page 18, between lines 26 and 27, to insert vehicle. the following: “(c) in subsection (9) (inserted by section Mr. McDowell: Is it fitted to trucks? 23(e) of the Act of 2004) by substituting “served or affixed” for “served”,”. Mr. Gallagher: It is on trucks and it is like the cruise control in cars.

Mr. Gallagher: The amendment to section 3 of Mr. McDowell: Are they obligatory? the Local Authorities (Traffic Wardens) Act is a mirror amendment of that to section 103 of the Mr. Gallagher: Yes. Road Traffic Act 1961. This amendment relates to the service of fixed-charge notices through Mr. McDowell: This is all very informative. affixing of the notices to vehicles by local auth- ority traffic wardens, and the reference to that in Mr. Gallagher: It is used for buses and goods any subsequent prosecution of the fixed-charge vehicles, where goods vehicles are limited to 90 offence in question. km/h and buses to 100 km/h. It does not affect other vehicles. Amendment agreed to. Amendment agreed to. Section 15, as amended, agreed to. An Cathaoirleach: Amendments Nos. 102 and 103 are related and may be discussed together. SECTION 16. Mr. P. Burke: I move amendment No. 102: An Cathaoirleach: Amendment No. 98 has already been discussed with amendment No. 93, In page 22, line 9, in column 4 of the Table, but I would like to point out a correction in the to insert “2”. list of amendments supplied to Senators. There This amendment relates to the NCT test. We should not be an asterisk before amendment No. have heard much about this test in the past 18 98, as it is not a Government amendment. months. If a driver does not have an NCT disk on his or her car, he or she currently does not Amendments Nos. 98 and 99 not moved. receive any penalty points. However, the driver may be brought to court where he or she can Government amendment No. 100: receive five penalty points. These amendments will provide that the driver can receive two pen- In page 19, column (2), line 38, to delete alty points before going to court, or four penalty “138(3)(b)” and substitute “138(3)”. points in court. The current enforcement of the letter of the law is very severe and this amend- Mr. Gallagher: This is a technical amendment ment would be more appropriate. which deletes a superfluous reference to subpara- graph (b) and leaves the provision as subsection Mr. Gallagher: The purpose of the inclusion of 138(3). Part 8 to the First Schedule to the Road Traffic Act is to make the offence of not having a valid Amendment agreed to. certificate of road worthiness for a commercial vehicle a penalty point offence. Part 8 removes Government amendment No. 101: the anomaly in this offence, as the equivalent offence for not having a valid NCT certificate for a car has been listed as a penalty point offence In page 20, column (3), line 19, after “dev- since 2002. ice” to insert “or using a vehicle equipped with The penalty point regime to apply under Part a speed limitation device not complying with 8 is identical to that which is already in place for requirements specified in Regulation 4, 5 or 6”. the NCT certificate offence. Failure to have an NCT certificate or a certificate of roadworthiness for a liable vehicle is a serious offence. A person Mr. Gallagher: The Bill provides that the convicted of not having an NCT certificate for a offence of using a liable vehicle without having car on two occasions within a period of three a speed limiter fitted will attract penalty points. years will, in addition to the normal penalty — a Section 16(2)(e) of the Bill updates the legislative fine of \1,500, a prison term of up to three basis for the application of penalty points for months, or both — be disqualified from driving a speed limitation device offences. This technical vehicle for six months. Given that a disqualifi- amendment to section 16(2)(e) provides that cation from driving could arise as a direct con- offences relating to the installation of a non- sequence of being convicted for failure to have a approved and unsealed speed limitation device in valid NCT certificate, the fixed charge payment vehicles will also constitute an offence for the arrangement does not apply in regard to that purpose of penalty points. offence. As the penalty points regime applying to 209 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 210 cars and the consequential driving disqualifi- would have to register their cars in this country, cation has been extended to goods vehicles and which it is possible for them to do. buses by this Bill, it would not be appropriate, for the reasons previously mentioned, to apply the Mr. P. Burke: They would have to reregister fixed charge payment arrangement to this new their vehicles. category of penalty points offence, which Senator Paddy Burke proposes in his amendment No. 102. Mr. Gallagher: They can do so by way of Amendment No. 103 which proposes that the transfer of residence or by paying the relevant number of penalty points on conviction for not importation fees in terms of VAT and VRT. They having a valid certificate of roadworthiness can secure a certificate in their country or they should be four instead of five, as provided for in can register the vehicle here. this Bill, would introduce an inconsistency between cars and other vehicles for penalty pur- Mr. P. Burke: That means that if a roadworth- poses for what are essentially identical offences. iness test certificate for vehicles registered in another jurisdiction have expired, owners of the Amendment, by leave, withdrawn. vehicles cannot apply for an NCT for that vehicle here, rather they have return to their own juris- Amendment No. 103 not moved. diction to secure such a certificate? Otherwise, they would have to reregister the vehicle here to Section 16, as amended, agreed to. comply with the law in terms of this Bill.

Amendments Nos. 104 to 106, inclusive, not Mr. Gallagher: Council Directive 96/96/EC moved. specifies clearly the categories of vehicles liable to testing, the minimum frequency of testing of Section 17 agreed to. vehicles, the times they must be tested and the arrangements for testing. The directive requires SECTION 18. that a vehicle liable to roadworthiness testing must be tested in the member state in which it is Question proposed: “That section 18 stand part registered and that proof of passing a roadworth- of the Bill.” iness test issued by that member state must be recognised in other member states. The require- Mr. Gallagher: For the information of the ment that it is tested in the member state in which House, I wish to advise that I intend to bring for- ward two amendments to this section on Report it is registered would preclude the Minister from Stage. making foreign registered vehicles subject to compulsory roadworthiness tests here. Question put and agreed to. Motor vehicles brought into Ireland from abroad, other than those brought in temporarily SECTION 19. by visitors, must be registered with the Revenue Commissioners by the end of the next working Amendments Nos. 107 to 109, inclusive, not day following their arrival in the State. Once a moved. vehicle is registered by the Revenue Commis- sioners, it then becomes liable to roadworthiness An Cathaoirleach: Amendment No. 112 is con- testing in accordance with Irish law. sequential on amendment No. 110 and they may These amendments will strengthen the enforce- be discussed together by agreement. ment arrangements in regard to compliance with compulsory periodic roadworthiness testing by Government amendment No. 110: foreign registered vehicles using Irish roads. The inclusion of these amendments and this section in the Bill will be beneficial because, as the Senator In page 25, line 38, to delete “or”. is aware, many of the vehicles involved in acci- dents and the far too many fatalities that occur Mr. Gallagher: These amendments com- here involve foreign registered vehicles. plement the powers being given to the Garda in the Bill to impound cars and commercial vehicles Mr. McDowell: This provision is an interesting which do not have a valid NCT and certificate and important innovation. Section 19(a)(b)is of roadworthiness, respectively. The amendments broadly phrased in that it allows a vehicle to be will enable the Garda to also impound EU regis- impounded if, in the opinion of a garda, it is being tered vehicles that do not have a current certifi- used without a roadworthiness certificate having cate of roadworthiness from their home member been issued in the country where it was regis- state. tered. I take it from that there is no obligation on foreign drivers or drivers of foreign registered Mr. P. Burke: Can the owners of EU registered cars to display the equivalent of an NCT certifi- vehicles apply for a roadworthiness test here? cate. This section appears to allow a garda to form an opinion that, for example, a car that is Mr. Gallagher: Yes. I apologise, I am advised registered in Poland appears to be a wreck and it must be obtained in the country where the that he or she will impound it without any eviden- vehicle is registered. The owners of the vehicles tial requirement beyond that. Perhaps that is a 211 Road Traffic Bill 2006: 14 June 2006. Committee Stage (Resumed) 212

[Mr. McDowell.] (ii) where the offence has been tried on good and necessary measure, but I wonder why indictment in the High Court, to a judge of the the paragraph is phrased in that fashion. High Court, to be allowed to apply for a licence, where the Mr. Gallagher: I am advised it is a matter for court having regard to the person’s conduct each member state to decide on its own practical since conviction and his or her suitability to arrangements. A sensible arrangement is in place hold a licence considers it appropriate.”, and here whereby the certificate is required to be dis- played on the windscreen of the vehicle, but if Mr. Gallagher: This amendment to section 21 that is not the practice or law in another member provides for amendments of substantive pro- state, we cannot compel foreign motorists to do visions contained in sections 24 and 36 of the Taxi that. However, a motorist must have such a cer- Regulation Act 2003, as amended by section 36 tificate in his or her possession and be able to of the Road Traffic Act 2004. Establishment and present it to the Garda. When such a certificate commencement orders in respect of the pro- is displayed on the windscreen of a vehicle it is visions of the Taxi Regulation Act 2003 are made easily recognisable and it is in the interests of under the relevant provisions of the 2003 Act and motorists to do so. We appeal to the citizens of accordingly, the Bill does not provide for a com- other member states residing here who are not mencement order under the Road Traffic Act compelled to display such a certificate on the provisions. Section 24 of the 2003 Act was com- windscreen of their vehicles to do so voluntarily menced with the establishment of the Com- until such time as there is consistency across the mission for Taxi Regulation on 1 September EU in this regard. 2004. Accordingly, the proposed amendment to section 24(7) will apply when the provisions of Amendment agreed to. this Bill are enacted.

Amendment No. 111 not moved. Amendment agreed to.

Government amendment No. 112: Section 21, as amended, agreed to. In page 26, to delete line 5 and substitute Section 22 agreed to. the following: “Regulations 2004 (S.I. No. 771 of 2004), SECTION 23. or Mr. P. Burke: I move amendment No. 122: (f) in the case of a vehicle registered in In page 27, between lines 26 and 27, to insert another Member State of the European the following subsection: Communities, the vehicle is, or a member of the Garda Sı´ocha´na is of the opinion that it “(2) Section 21 comes into operation on the is, being so used without a proof of passing Act’s passing into law.”. a roadworthiness test in accordance with This is a minor amendment giving immediate Council Directive 96/96/EC of 20 December commencement to the Act rather than having it 19961 which is for the time being in force in commenced by ministerial order. Will the Mini- respect of the vehicle.”. ster of State advise when section 21 will come into effect? Amendment agreed to. Mr. Gallagher: Section 21 provides for amend- Section 19, as amended, agreed to. ments of substantive provisions contained in sections 24 and 36 of the regulations of 2003, as Amendments Nos. 113 to 120, inclusive, not amended by section 36 of the Road Traffic Act, moved. as I noted earlier. Section 24 of the 2003 Act was commenced with the establishment of the Com- mission for Taxi Regulation and the amendments Section 20 agreed to. to section 36 will have effect on the date of com- mencement of the relevant provisions of the SECTION 21. section, under the Taxi Regulation Act 2003. It is the first step towards giving full effect to the Government amendment No. 121: provisions of section 36, as amended. In page 27, to delete lines 5 to 20, and substi- An order has been made commencing subsec- tute the following: tions (2)(a), (3)(a) and (4) of the section with effect from 25 May 2006. The measures in these “(i) where the offence has been tried— subsections give existing licenceholders or appli- (I) summarily, to the judge of the District cants who had been convicted of specified Court in whose district, or offences an opportunity to apply to the courts in advance of the full commencement of section 36 (II) on indictment in the Circuit Court, to to be allowed to apply for a licence under such the judge of the Circuit Court, in whose cir- terms as a court may direct. cuit, the person intends to provide small One of the amendments to this Bill is intended public service vehicle services, or to clarify that in dealing with such applications 213 Health 14 June 2006. Services 214 the court may have regard to the person’s con- in many areas, for example, special housing aid duct since conviction and his or her suitability to for the elderly, in respect of which the money was hold a licence. Further consultation will be underspent in Mayo for two years. Mayo gave required before a decision is taken to commence \300,000 to Galway, which must pay it back. It is in full the provisions of section 36 of the Taxi a ridiculous mathematical formula and I am sure Regulation Act 2003 as amended by section 36 of the Minister of State would prefer to see assess- the Road Traffic Act 2004. The commencement ment of needs as the criterion for allocating fund- date will be determined when all the necessary ing, whether in respect of housing aid for the eld- arrangements have been settled in consultation erly or disability services. with the Commission for Taxi Regulation, the There is also a problem in regard to occu- Garda, the Courts Service and the Department of pational therapy and physiotherapy. The associ- Justice, Equality and Law Reform. An appro- ations to which I spoke have the personnel but priate period of advance notice of the proposed need funding. They asked whether funding could commencement of the section will be required to be provided for their associations out of the dor- allow persons who may be affected by the pro- mant accounts fund. Western Care also does good visions in particular existing licence holders to work, particularly in County Mayo. Significant clarify the position with the courts, if at any stage numbers of people help these associations they have not already done so. through fund raising. In my parish and in many The relevant commencement order will be parishes in east Galway there are church gate col- made under the provisions of the Taxi Regulation lections every year to help them with their excel- Act 2003, and it is expected later in the year to lent work. They may have been forgotten some- make the necessary order to commence the pro- what under the health boards, but I hope that visions of the sections of the Bill. For that reason separate allocations will now be provided for it is not possible to accept the amendment. each county and that these will be based on the assessment of needs rather than any mathemat- Amendment, by leave, withdrawn. ical formula, a method which is out of date and no longer acceptable. I thank the Minister of Section 23 agreed to. State for his attendance and hope he has good news for me on the allocation of funding for this Title agreed to. year.

Bill reported with amendments. Minister of State at the Department of Health and Children (Mr. B. Lenihan): I hope I can assist Acting Chairman (Mr. Moylan): When is it Senator Kitt in this matter of great concern to proposed to take Report Stage? him. I am taking this debate on behalf of my col- league, Deputy Tim O’Malley, Minister of State Ms O’Rourke: Tomorrow. at the Department of Health and Children. I will outline to the House the position regarding the Report Stage ordered for Thursday, 15 June additional funding provided for services for chil- 2006. dren and adults with disabilities in 2006. Under the multiannual investment programme Acting Chairman: When is it proposed to sit 2006-09, which is part of the national disability again? strategy, additional funding amounting to \51.5 million has been provided by the Government in Ms O’Rourke: At 10.30 a.m. tomorrow. 2006 to meet costs associated with the provision of certain specific high profile disability services. Adjournment Matters. With regard to services for persons with intellec- tual disability and those with autism, this includes ———— 255 new residential places, 85 new respite places, 535 new day places and the continuation of the Health Services. implementation of the transfer of persons with Mr. Kitt: I thank the Minister of State at the intellectual disability or autism from psychiatric Department of Health and Children, Deputy hospitals and other inappropriate placements. Brian Lenihan, for coming into the House. He In addition to the aforementioned services, takes a particular interest in disability. I met the further additional funding of \22.5 million has Brothers of Charity Services and the Galway been provided for 2006. This has been allocated Association last Monday regarding issues they to enhance the multidisciplinary support services brought to my attention, chiefly, what they for children and adults with physical, sensory and describe as serious emergencies in their region. intellectual disabilities and those with autism and They pointed out that as many as 75 people with to address core underfunding and core staffing urgent needs, whom the HSE rates as critical and issues in services for people with disabilities pro- requiring service immediately, cannot be offered vided by the voluntary sector. Capital funding those services under the 2006 budget. I hope this amounting to \45 million has also been provided issue can be considered. in 2006 to put in place the infrastructural supports I am disappointed that in recent years the associated with the aforementioned former Western Health Board tended to divide developments. its money in the ratio of 3:2:1 between Galway, The Health Act 2004 provided for the Health Mayo and Roscommon, respectively. This arose Service Executive, which was established on 1 215 University 14 June 2006. Properties 216

[Mr. B. Lenihan.] the UCD agriculture degree to become purely January 2005. Under the Act, the executive has academic with no research or practical on-the- the responsibility to manage and deliver or ground element, we will have nothing more than arrange to be delivered on its behalf, health and a science degree in the agriculture area. That personal social services. This includes the pro- would be a failure. vision of additional funding for disability services The need has never been so great for the in the counties referred to by Senator Kitt. I am development of agricultural products such as bio- advised that the Health Service Executive’s distri- fuels. The beet industry has been eliminated here bution of disability development funding is based and growers have been told they must develop on population considerations and on contractual new crops. We cannot develop new crops here arrangements entered into by the executive. unless we have research and development within I suggest that the Senator should obtain confir- the faculty of agriculture. It is tragic that Teagasc mation of this from the executive in light of the has failed in this area also. It has sold out. Many matter he has raised. If he does not obtain satis- of the Teagasc research farms throughout the faction, he would be more than entitled to persist country have been sold off, even properties where on the issue. tuition took place. The Department of Agri- In these circumstances, decisions on the exact culture and Food has also sold out. In Athenry, distribution of funding between areas of counties County Galway, it sold 80 acres of its prime are a matter for the Health Service Executive. research and development agricultural land. There is a great fear among the staff of UCD, University Properties. particularly in the agriculture department, that we are downgrading agriculture. This is hap- Mr. U. Burke: I welcome the Minister of State, pening at a time when we should be spearheading Deputy Brian Lenihan, to the House. This the development of new crops, feeding stuffs and motion seeks that the Minister for Education and husbandry techniques. Science insists on the retention of the UCD The Higher Education Authority is now the research farm at Lyons Estate, Straffan, County organisation that will decide on these issues. If it Kildare. decides on the sale of the Lyons Estate, we will I ask this because the Lyons Estate has pro- see the demise of agriculture within UCD. That vided extensive research and development for is not good enough. It will affect the personnel in agriculture since the estate was first purchased in the agriculture department and destroy the rap- 1962 by the agriculture department of UCD. The port between them. Other elements within UCD 1,300 acres of the estate were used for agricul- feel it is right to sell the property now to get tural research and development. Unfortunately, resources for other projects in the college. That some years ago over 800 acres of the farm were would be a travesty. sold, resulting in a downgrading of research and We should consider what was put into the development on the estate. Lyons Estate over the years. It was a Galway This has occurred at a time when agriculture man, the late Professor Ruane, who had the needs are changing rapidly. The greatest need we initiative and foresight to purchase the Lyons have in the agriculture area now is for research Estate. He developed it against the odds at a time and development of new techniques and pro- when resources were scarce in the university sec- duction and new crops etc. The very opposite is tor. He reclaimed the land and installed buildings happening in the agriculture department in UCD. for all areas of animal husbandry research. The The great fear is that the department will move research that has been done there by people like from the Lyons estate to an urban area. As the Dr. Crosby, who is involved in the sheep sector, Minister of State represents a Dublin constitu- has stood the test of time in terms of its import- ency, he should be aware there is not much ance to agriculture. Perhaps we should not pay opportunity for agricultural research in the much attention to rumours, but this rumour is Dublin urban area. In fact, the UCD agriculture based on practices which have been noted pre- department was in Glasnevin for a while, but it viously. When the Minister directs those who will moved from there because of the inability to con- make the final decision, it is important for her to duct worthwhile research there. make a real and determined indication that prac- I will give an example of what happened pre- tical agriculture needs to be retained within the viously in the agriculture research department of current structure. The research farm in question UCD. It made a great advance in the production was never needed more than it is now because of maize animal feed and pioneered a develop- we are competing with cheap food products from ment in this area. Due to our shorter growing sea- other areas. We have been told we have to offer son for maize as animal feed the agriculture a greater quality of produce, such as organic department pioneered the idea of sowing it under produce or other food developments. My final plastic. Many countries, particularly countries of plea to the Minister of State is to ensure that we northern Europe, have come here to study and preserve the farm so that agriculture does not copy what was developed here through the inven- become an academic science subject without any tiveness and research of the UCD agriculture practical input. department. If we allow agricultural research decline at Mr. B. Lenihan: I thank Senator Burke for rais- UCD, we will no longer have a college providing ing this matter on the Adjournment. I will a pure agriculture degree. UCD is the only uni- respond to him on behalf of the Minister for Edu- versity here providing such a degree. If we allow cation and Science. The Senator is well aware 217 Schools Building 14 June 2006. Projects 218 that the Lyons Estate belongs to University Mr. B. Lenihan: Any decision to dispose of part College Dublin. The day-to-day management of or all of Lyons Estate will be made when the UCD, which is an autonomous body, is a matter review findings have been approved by the gov- for its governing authority. The college auth- erning authority. In line with best practice, the orities are free to dispose of lands and property review will be conducted by the university, which acquired prior to the passing of the Universities will be guided by international experts in the rel- Act 1997 without recourse to the Minister for evant areas. The brief for the review body will Education and Science. They are, however, require it to consider the need for the university required to agree terms with the Minister to reim- to retain access to suitable field facilities for agri- burse Exchequer funds which were used to culture and veterinary science on a continuing acquire lands and properties after the passing of basis. It is expected that the implementation of the 1997 Act. As the Lyons Estate was acquired the review group’s findings will be realised in the in the 1960s, the college authorities are free to do medium term. It should be noted that the univer- what they want with it. sity is fundamentally assessing its priorities, developments and facilities in the sciences, in As Senator Burke said, the Lyons Estate was accordance with the Government’s policy in this acquired to provide a field experiment and teach- area. I have given Senator Burke as much help as ing facility for UCD’s faculty of agrifood and the I can this evening. environment. The estate originally comprised approximately 1,200 acres, including Lyons Mr. U. Burke: Does the Minister of State agree House. The college authorities disposed of the that the veterinary faculty is driving the proposed house and approximately 620 acres of land in the change? Is the review group an internal review early 1990s. Since then, the research farm has group or does it involve independent outside con- provided research and teaching facilities for the sultants? If the group is not independent, the faculties of agri-food and the environment and goose is cooked in this regard. veterinary medicine. However, most faculty teaching and research activities are based on the Mr. B. Lenihan: The review is taking place main UCD campus at Belfield, where there are within the college of life sciences, but it is guided additional laboratories for food science, com- by international expertise. puter equipment and a modern lecture theatre. The primary responsibility of UCD’s governing Ms O’Meara: Whatever that means. authority, which was established under the Uni- versities Act 1997, is to guide the strategic direc- Mr. U. Burke: I thank the Minister of State. tion of the university. The university has consoli- dated most of its activities at Belfield in recent Schools Building Projects. years. The school of veterinary medicine was relocated to the Belfield campus in 2003. A 90- Ms O’Meara: I thank the Minister of State, acre horticulture facility, which is located Deputy Brian Lenihan, for coming to the House between Lucan and Leixlip, was sold to a local to discuss this important matter. I see him looking authority in 2004 to be incorporated into its prog- at the clock so I will not delay him further. The ramme of general amenities for the area. vocational school in Nenagh, which is a substan- The future of Lyons Estate is being reviewed tial school, has not been refurbished or upgraded within the college of life sciences as the next step since it was built in the early 1970s. We know how in the UCD strategic planning process. The gov- long ago that was. The building is not up to the erning authority approved the initiation of the standard that is needed if the school is to provide review at its meeting on 21 March last. It is the services required of it. To give a practical intended that the review will consider the appro- example of the problems being faced, there are priateness of the current scale of the farm as a not enough sockets in some of the rooms. It is centre for teaching and research, the accessibility almost impossible for all the school’s computers of the farm to the students, who are entirely to work at the same time because the building cannot cope with the level of power that is based at Belfield, and the impact of the new vet- needed to make that happen. Such a level of erinary school at Belfield, which incorporates a demand was not envisaged in the 1970s. fully operating veterinary hospital and signifi- The school has applied to the Department for cantly increased state-of-the-art animal holding funding for a refurbishment programme and has facilities. Most important, the review will con- been told it is at phase 1. The estimated cost of sider the changing focus of undergraduate teach- the refurbishment programme was \3.5 million a ing programmes, particularly in the school of agri- few years ago, but it is not possible to estimate culture, and the altered physical facilities now what it will cost. The school authorities are required as a result of the new directions being frustrated because the project has been moved on taken by research in these areas. The university and off the list of projects to be pursued. It was has developed the view that it can be impractical on the building programme list at phase 1 last to operate an institutional farm facility in an area January. It is as if it is stuck at phase 1. As some- of rapidly increasing urbanisation. Senator Burke one who is familiar with the school, I assure the might be glad to hear that the review is expected Minister of State that it is in need of complete to take approximately 12 months to complete. refurbishment. It is catering for 275 second level students, as well as 100 adults who are doing full- Mr. U. Burke: At least. time adult education courses, including courses in 219 The 14 June 2006. Adjournment 220

[Ms O’Meara.] Nenagh vocational school was listed, among child care, an issue that is dear to the Minister of 124 schools that were announced in April 2005, State’s heart. as a project to be furthered through the architec- It took 35 years to get the funds to put a fence tural planning process. The brief for this project around the school. I have raised this matter on is the refurbishment of current accommodation the Adjournment because the school authorities and an extension to provide appropriate accom- are frustrated about the project being stuck at modation for a long-term projected enrolment of phase 1. I thank the Minister of State for coming 400 pupils. Officials of the Department of Edu- to the House to respond to my concerns. The cation and Science visited the school in teachers, the board of management and the November 2005 and consequently revised the families who are sending their children to the schedules of accommodation which were issued school are anxious about the future. The school to the VEC authorities in a letter dated 21 has made and continues to make a significant November 2005. In the letter, the Department contribution to the community of Nenagh and the instructed the VEC authorities to request their entire catchment area. The principal and the rest design team to amend the stage 1 application, site of the staff are very committed to the future of suitability and design options, to reflect the the school. I would like the Minister of State to impact of the revised schedules on the design outline the Department’s plans to pursue the options as presented in the original stage 1 appli- building programme for the vocational school in cation dated January 2001. Nenagh. The Department of Education and Science has subsequently received the requested information Mr. B. Lenihan: I thank Senator O’Meara for from the VEC authorities and on completion of affording me an opportunity to outline to the a review of the submission, officials of the House the Department of Education and Department will be in contact with the school Science’s position on the proposed building pro- authorities with regard to furthering their project. ject at the vocational school in Nenagh, County Progression of projects to tender and construc- Tipperary. The modernisation of facilities in our tion will be considered in the context of the 3,200 primary and 750 post-primary schools is not school building and modernisation programme, an easy task, given the legacy of decades of 2006-10. under-investment in this area and the need to Ms O’Meara: When will the review of the sub- respond to emerging needs in areas of rapid mission be completed? population growth. Since the Government came into office, it has shown a sincere determination Mr. B. Lenihan: The reply only discloses that to improve the condition of our school buildings the request has been received by the Department. and to ensure that appropriate facilities are in However, I assume that as it is being dealt with place to enable the implementation of a broad at an official level, this will be done within a and balanced curriculum. Evidence of this com- reasonable time. mitment is the fact that approximately 1,300 building and modernisation projects are active in Ms O’Meara: I thank the Minister of State. our primary and post-primary schools this year. Over \490 million is being spent on primary and The Seanad adjourned at 8.40 p.m. until post-primary projects throughout the country. 10.30 a.m. on Thursday, 15 June 2006.