International Protection Bill 2026: Report and Final Stages
Seanad Éireann — 2026-03-25
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Jim O'Callaghan (FF), Dublin Bay South

I thank Senators Boyhan and McCarthy for tabling this amendment and for their contributions. I similarly thank Senator Stephenson for her contribution. I will reply to them in the order in which they made their contributions. In the amendment tabled by Senators Boyhan and McCarthy, one can see that what they are looking for is that within 12 months of the passing of the Act, I will produce a report on the treatment of refugees and asylum seekers and, "The report shall analyse the effects of this Act and include details as to whether immigrants [which I presume is a reference to refugees] are receiving appropriate legal counselling and are being treated humanely in detention in line with national law and the European Convention on Human Rights." That is a perfectly commendable amendment in the objectives it seeks to attain.
We had a brief discussion about this on the previous occasion when I was in the Seanad on Committee Stage. I indicated at that stage - I did not get an opportunity to elaborate on it - that I believe the Bill as it is drafted sufficiently covers the issues of concern to Senators Boyhan and McCarthy. I wish to specifically refer to Part 14 of the Bill, which establishes the office of chief inspector of asylum border procedures. I know colleagues will have already looked through that but it is important to point out there is a new statutory body, a chief inspector, which will be established for the purpose of doing what in many respects Senators Boyhan and McCarthy are seeking through their amendment. Section 252 which deals with the function of the chief inspector states that the chief inspector shall furnish to me "... annual recommendations in relation to the improvement of fundamental rights compliance at designated asylum border facilities". The legislation in the Bill at present is preferable to what the Senators propose in their amendment. Under their amendment, I am the one responsible for the report and the one required to ensure I produce a report. I do not think Members of this House or the Lower House would believe a report by me would be sufficiently independent. If I had in the legislation that I would be the person to do a report to determine whether human rights obligations are being complied with, Senators would say it would be far more preferable if that was done by an independent statutory entity. It is preferable that it is done by an independent statutory entity. That is why the provision in the legislation containing Part 14 about the chief inspector is so important.
It is also relevant to look at section 259. This deals specifically with the issue identified by Senators Boyhan and McCarthy. It refers to the annual report of the chief inspector. It requires that the chief inspector shall, not later than three months after the end of each year - not just the first year - submit an annual report on the performance of the chief inspector’s functions and other related matters and that any part of the report to be laid before each House of the Oireachtas that would prejudice security will be refused. It will ensure there is an annual report of the chief inspector that will be presented to me and will then be available for examination or questioning by the Oireachtas committee. On the amendment, it is preferable that there will be a report on a continuous basis rather than simply within 12 months of the passing of the Act. It is also preferable that the report will be done independently by a chief inspector as opposed to by me.
The objective is to ensure the treatment of international protection applicants or refugees is in compliance with Irish law and the European Convention on Human Rights. I am extremely satisfied that the legislation I am putting before the Houses is completely in compliance with the ECHR and any domestic responsibilities we have. When one looks at the legislation as a whole, one can see it is very much balanced. The rights for the international protection applicant are clearly set out. If an assessment was done of how many sections cover the rights of the applicants, there is a significant majority. There also have to be duties that are owed to the State to adequately process applications for asylum and ensure asylum applications are for those who are legitimately fleeing persecution and war. We have to have a process in place for that to be secured. I believe the legislation balances that very appropriately.
Senator Stephenson also raised the issue of compliance with the ECHR. I assure her it is unquestionably compliant with it. She identified the signature by Ireland - by me - on 10 December at the Council of Europe in respect of a proposal for a political declaration put forward by Denmark and ultimately supported by 27 member states of the Council of Europe. To suggest that this is in some respect some partisan or niche interest group within the Council of Europe is not correct. The majority of member states were in favour of it. Türkiye was against it and I think Azerbaijan was against it. A significant number of our colleagues not just within the Council of Europe but also in the European Union were in favour of it. It sought to do what people are entitled to do as members of the Council of Europe which is to seek a political declaration. It was sought in respect of a variety of issues but the issue Senator Stephenson highlighted is in respect of Article 3 of the Convention. As she correctly pointed out, Article 3 is the provision that deals with torture and inhumane and degrading treatment. As she noted, Ireland brought a case in respect of torture and inhumane and degrading treatment in the 1970s. I thought the other interstate case was more to do with Article 2 to ensure that rights to an inquiry in respect of somebody being killed are vindicated. In the early 1970s a challenge was brought against the treatment by the British Government of persons who had been interned in Northern Ireland and their treatment while they were in custody. This gave rise to cases that were subsequently referred to as "the hooded men" cases. Ireland claimed that the five men had been sensorially deprived - they had to stand up, their arms were against a wall and noise was constantly played - all the characteristics of what we would associate with torture. Ireland took an interstate case to the European Court of Human Rights claiming torture. We lost on torture but won on inhumane and degrading treatment. I would have thought most people, when they look at Article 3, whether it is about torture or inhumane and degrading treatment, that is the type of treatment they would consider a violation of Article 3. The reason Denmark and 26 other member states put forward a request for the Council of Europe to bring in a political declaration in respect of Article 3 is that, since then, the European court has interpreted Article 3 in a very broad manner, to use that as objective language.
For instance, there have been a number of cases of the European Court of Human Rights, such as Paposhvili v. Belgium and M.S.S. v. Belgium and Greece, where countries that were members of the Council of Europe found it extremely difficult to remove from their jurisdiction persons who had come into their countries, had been convicted of serious criminal offences and who they then wanted to deport from their countries. In the cases of Paposhvili and M.S.S., they were told by the court that there were circumstances where people could not be moved, for instance, if the medical treatment they were going to receive in the country to which they were going to be deported was less than the medical treatment they were receiving in the country that wanted to deport them, or that the other accommodation might not have been of the same standard. Senator Stephenson may believe that is an example of inhumane and degrading treatment. I have my doubts in respect of it. I certainly think the political elected representatives of the Council of Europe are entitled to put forward a political declaration. As the court is a living court, it takes into account political declarations when it comes to its interpretation of articles within the convention. Work has been ongoing in respect of that and there will be general agreement on a political declaration later this year. It is important to note that even though the number of cases may be small, the impact of judicial authorities and jurisprudence is not in respect of the number of them but in respect of the authority that is derived from them. The cases that I have identified, and other cases that I cannot recall the names of at present, have very much expanded the definition of Article 3 of the European convention. That was one of the reasons that countries in Strasbourg, including Ireland, decided to seek a political declaration in respect of the matter.
The final thing I wanted to identify and respond to Senator Stephenson on was that there was a reference to the UK wanting to get out of the ECHR. My experience from my engagement with the UK Government is that it is desperately keen to stay within the European convention for a variety of reasons, not least of which is the importance the convention has to ensuring that the terms of the Good Friday Agreement continue to operate effectively. That was the clear communication from Deputy Prime Minister Lammy, whom I met out in Strasbourg at the time on 9 and 10 December. It was a very significant development that the UK asked Ireland to do so. Other countries asked other countries to do so as well. There was a general coming together of countries and Ireland, of its own accord, decided that we would sign up to that letter. I believe it was the correct thing to do when we consider how the definition of Article 3 has in more recent times been interpreted by the European court. For those reasons, I do not think it is necessary to accept the amendment from the Senators.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-03-25/debate/main
Retrieved: 2026-08-14T04:54:46+00:00
Sitting date: 2026-03-25