Control of Exports Bill 2007 [Seanad Bill amended by the Dáil]: Report and Final Stages.

Wednesday, 20 February 2008

Seanad Éireann Debate
Vol. 188 No. 14

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An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke This is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question, “That the Bill be received for final consideration”, the Minister of State may explain the purpose of the amend[974]ments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators’ convenience, I have arranged for the printing and circulation of the amendments. The Minister of State will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. A Senator may contribute once on each grouping. I remind Senators that the only matter that may be discussed is the amendments made by the Dáil.

Question proposed: “That the Bill be received for final consideration.”

[975]An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I call on the Minister of State to speak on the subject matter of group 1 on definitions.

Minister of State at the Department of Enterprise, Trade and Employment (Deputy John McGuinness): Information on John McGuinness Zoom on John McGuinness The definition of “transfer by electronic means”, by reference to Council Regulation (EC) No. 1334/2000, has been deleted because it was considered that this is a term commonly in use that does not require a specific definition. Given the fast pace of technological developments, it was also believed that to restrict the scope of the definition to what is understood currently to comprise electronic transmission might exclude new methods that may emerge during the lifetime of this legislation.

Senator John Paul Phelan: Information on John Paul Phelan Zoom on John Paul Phelan I have no difficulty with the amendment as explained by the Minister of State.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Group 2 concerns orders and regulations, the subject matter of amendment No. 2.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness Since the Bill was initiated in the House, the European Communities Act has been enabled to permit relevant domestic legislation to be used to give effect to European Acts. As a result, it is not necessary to make a specific provision to that effect in this Bill. The amendment provided for the corresponding deletions from the section.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Group 3 concerns the purposes of the Act, the subject matter of amendments Nos. 3, 5 and 6.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness These Government amendments were made in response to an interesting proposal from the Labour Party to insert a new principles and policies section in the Bill to set out the general principles and policies with particular regard to the EU and other international organisations and any other general Government policies. The legal advice I obtained from the Attorney General’s office did not support the inclusion of the new section. However, taking on board the intent of the proposal, the text, “having regard to the purposes of this Act”, has been added to sections 3, 4 and 5. The objective was to establish beyond doubt the linkage between our EU and international commitments and the reasons for making orders and regulations under these sections.

Senator Alex White: Information on Alex White Zoom on Alex White I appreciate the Minister of State’s comments and the advice he has received. The rationale for our proposal has been taken account of, which I welcome.

Senator John Carty: Information on John Carty Zoom on John Carty Has the Minister of State received assurances from the EU that it is as vigil[976]ant as it should be, particularly in respect of the brokering provision in section 3?

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness The scope of brokering controls is addressed by amendment No. 4. In the context of EU——

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We will deal with that matter in the next group. Group 4 concerns the scope of brokering controls, which is the subject matter of amendment No. 4.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness The House will recall that Senator Quinn tabled an amendment on Committee Stage last year that sought to extend the scope of extra-territorial brokering controls beyond Irish citizens and companies to include non-Irish nationals resident in the country. At the time, the Government undertook to obtain legal advice on the proposal and, should it prove favourable, to introduce a corresponding amendment when the Bill reached the Dáil.

The section was subjected to the closest scrutiny by my Department and the Attorney General’s office to determine whether there was a way in which to move forward on the proposal. As indicated in last year’s debate in the House, there were serious concerns in respect of the lack of a single definition of a resident under Irish law. This contrasted with the situation in other countries, for example, where there is a civil registration requirement for all residents. There was also a question on the extent to which the State can attempt to impose extra-territorial controls. The possibility was raised that the inclusion of such a provision in the legislation could create the basis for a legal challenge to the Act. For example, this course of action could be taken by parties to whom we might wish to apply controls. Regrettably, I concluded that, while desirable from a policy viewpoint, the legal considerations were such that this worthy amendment might create more problems than it would solve. For this reason, the Government could not accept it.

The scrutiny had an impact in that it resulted in the identification by the Attorney General of a potential problem with the section as drafted. He pointed out correctly that the extra-territorial brokering controls should only be exercised outside the EU, as each member state had a similar obligation to control brokering activities within their jurisdictions. Were Ireland to have the capacity to control brokering activities in another EU member state, we might somehow be implying that we do not trust our partners to comply with their obligations. For this reason, the Government tabled the amendment which excludes from Irish control brokering activities carried out in another EU member state. It also provides that brokering activities undertaken outside the State on foot of an authorisation by another EU member state would be outside the scope of Irish control.

[977]Senator Carty raised a question on other brokering issues. There are regulations on this matter and Common Position 2003/468 has been adopted in this regard by the EU. This common position is applied and deals with the question raised by the Senator.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Group 5 relates to minor redrafting amendments, the subject matter of amendments Nos. 7, 8, 9, 11, 12, and 14.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness These are all minor redrafting amendments made on foot of recommendations from the Office of the Attorney General. They do not impact on the intent or scope of the legislation.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Group 6 relates to licensing regulations, the subject matter of amendment No. 10.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness The Government added a new subsection to the section on export licences to provide for the introduction of internal compliance procedures for exporters of controlled goods. This was in response to calls from various commentators seeking, for example, greater post-shipment controls and will allow me to incorporate such provisions in the regulations to be made under this section. The implementation of the appropriate internal compliance procedures will encourage responsible behaviour by exporters at all stages of the exporting process, from the initial contact with potential customers to post-shipment control.

Senator Dan Boyle: Information on Dan Boyle Zoom on Dan Boyle I welcome the inclusion of this amendment, its passage in Dáil Éireann and it being reported to Seanad Éireann. This amendment was recommended by the Green Party and I am glad that the Minister has seen fit to include it in the Bill. It is important that we have internal compliance procedures for licence holders and it is important that those procedures be mandatory. It is also important that licences include a level of post-export examination as regards the destination of the goods and technology as this will help ensure they are not used for military purposes and that they are not a factor in human rights abuses abroad. This amendment represents an improvement to the Bill and for that reason should be welcomed by the House in the manner it has been welcomed by those who campaigned for the inclusion of such an aspect to the Bill.

An Leas-Chathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Group 7 relates to the annual report, the subject matter of amendment No. 10.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness The Control of Exports Bill was initiated in this House in February 2007 and, despite our best efforts, it was not possible to have it enacted before the end of that year. It was necessary, therefore, to amend this section to provide that the first annual report [978]to the Oireachtas on the operation of the Act would be in respect of 2008. I assure Senators that this is not to be regarded as an attempt to delay the provision of information on our strategic exports but is merely a technical issue. Until this Bill is enacted I do not have a legal basis on which to submit an annual report to the Oireachtas.

Senator John Carty: Information on John Carty Zoom on John Carty Will the Minister of State give a commitment that the annual report will be taken seriously, rather than left on a shelf gathering dust?

Senator Dan Boyle: Information on Dan Boyle Zoom on Dan Boyle I accept the Minister of State’s explanation for the need for this amendment as the Bill has taken some time to go through both Houses of the Oireachtas and the elections to both Houses was part of that process. I welcome the fact that an annual report is part of the procedures of this Bill and, along with Senator Carty, I feel it is important that the reporting mechanism for such a Bill should be to have it debated, where possible, preferably in this House, where there might be more latitude to examine its provisions and comment critically on how the report can be improved in subsequent years.

Senator John Paul Phelan: Information on John Paul Phelan Zoom on John Paul Phelan I echo the sentiments of Senator Boyle. This Bill came about largely due to reports over a year ago on the involvement of Irish businesses in the global arms trade. I accept the amendment as stated by the Minister of State but I agree with Senator Boyle that we could usefully have a more regular discussion of these issues when the annual report is produced in the Seanad. The report could be discussed at the Joint Committee on Enterprise and Small Business in addition to the two Houses. Perhaps the Minister of State has some ideas for a direction in this regard.

Senator Alex White: Information on Alex White Zoom on Alex White I agree with the sentiments expressed by my colleagues in respect of the importance of an annual report and the continuing scrutiny of the issues addressed in this legislation. I appreciate there has been some delay and I understand the Minister of State’s comments on where the matter stands at the moment but the availability of an annual report and the opportunity for the House to discuss and scrutinise developments is very important and consistent with the democratic process that led to the passing of this legislation.

Deputy John McGuinness: Information on John McGuinness Zoom on John McGuinness In the course of introducing this Bill and ensuring that everyone was consulted on it I went out of my way to involve Members. In the course of the various Stages in this House and the Dáil I discussed matters with them and assured them we could debate the annual report either in the Seanad or at the Joint Committee on Enterprise and Small Business. I believe legislation in this [979]hugely important area will always be a work in progress and I have every intention of ensuring that the consultation process continues. I hope the Seanad or the Joint Committee on Enterprise and Small Business uses the opportunity each year to debate the annual report because through such a debate we could find ways of improving the report and addressing issues that arise from this legislation or the report. I again assure Members of this House that I will continue this process and work with them to ensure we have an opportunity to discuss the annual report.

Question put and agreed to.

Question proposed: “That the Bill do now pass”.

Senator John Paul Phelan: Information on John Paul Phelan Zoom on John Paul Phelan I thank the Minister of State and Report and Final Stages have been quick in the Seanad today. This is significant legislation and Fine Gael has supported its passage through both Houses of the Oireachtas.

However, Ireland can take another route in monitoring the international arms trade. A significant number of dual-use products produced in this country are used in some way, shape or form in the global arms trade but in the overall context it does not represent even a drop in the ocean. Ireland, the Minister and the Government have roles to play, in terms of international relations, through the diplomatic service and the Department of Foreign Affairs, in ensuring the development of a more scrutinised international arms trade. This goes beyond the bounds of this legislation but it is an area in which Ireland could have a greater impact on this trade.

I welcome the passage of the Bill through the House and believe it is a significant step in the right direction.

Senator Alex White: Information on Alex White Zoom on Alex White I also welcome the passage of this legislation and the commitment the Minister of State has shown to consultation with members of the Opposition in both Houses. This is important legislation and, as Senator Phelan said, the fact that Ireland is a small country and some people view our involvement in this trade as merely a drop in the ocean does not detract from the vital importance of the controls contained in this Bill. Huge ethical and moral issues are associated with this debate and they have been aired here and in the other House.

Notwithstanding the fact that not all of the Opposition’s proposed amendments have been accepted there has been a willingness to consider them and some have found their way through in some shape or form. There has been a vitally important debate on this matter, which may have been a little overdue as members of my party have called for such controls as these to be introduced for some years. That is in the past now as the legislation is in place. I welcome it and commend the Minister of State on shepherding it through as he did.

[980]Senator Dan Boyle: Information on Dan Boyle Zoom on Dan Boyle I too will welcome the final passage of this Bill into enactment when it is signed by Uachtarán na hÉireann as it represents an important development in legislation in this area. This applies particularly to the area of licensing and the introduction of a series of controls on an industry that few members of the public in Ireland wish to see develop. On those grounds, the legislation should help prevent the unnecessary development of such an industry.

Nevertheless, it is only part of a policy approach aimed at ensuring the arms industry does not develop a strong base here. We need to consider introducing legislation or ethical investment guidelines to govern the use of State moneys, specifically the National Pensions Reserve Fund. We need to ensure the State does not unwittingly encourage the development of the arms industry, either domestically or internationally. the legislation will be a cornerstone for our enterprise policies for international trade and I wish the Minister of State every success in implementing it.

Senator John Carty: Information on John Carty Zoom on John Carty I compliment and congratulate the Minister of State on introducing the Bill. As Senator Boyle noted, it is important to have proper structures in place to regulate the export of arms. What are the Minister of State’s intentions regarding secondary legislation?

Minister of State at the Department of Enterprise, Trade and Employment (Deputy John McGuinness): Information on John McGuinness Zoom on John McGuinness I thank Senators for participating in the debate. The annual report will afford us an opportunity to monitor events at home, abroad and in world markets and to respond accordingly. I will consult the parties on secondary legislation, as I did when introducing the legislation. I may also consult the Oireachtas committee and will inform the parties and committee of my intentions and listen to suggestions they may have. I hope to return to the committee to deal with secondary legislation at an appropriate time, perhaps before the end of the year. A conference on an arms trade treaty and cluster munitions will be held in 2008 and the Government will support any activity in this area which will result in clarity, transparency and so forth.

I thank all those who contributed to the debate and note the work done by my predecessor in this portfolio, the current Minister of State at the Department of Enterprise, Trade and Employment, Deputy Michael Ahern, who introduced the Bill in the House 12 months ago. I am pleased to have cut my ministerial teeth on this important legislation. I assure Senators I will continue to consult them in considering secondary legislation and the annual report.

Question put and agreed to.


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