Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to bring the Criminal Law (Human Trafficking) (Amendment) Bill 2013 before the House. Trafficking in human beings is an appalling crime, a serious abuse of human rights and an affront to the dignity of the human person. It should never be tolerated. We must use all the tools and resources at our disposal to prevent and combat human trafficking, prosecute the perpetrators and protect its victims. Legislation is one such tool and a very important element of our strategy to address the evils of human trafficking. However, this is but one element of the Government's ongoing efforts to prevent and combat this ugly phenomenon.

Ireland has well-established, structured and co-ordinated arrangements for the provision of assistance and support to victims of human trafficking, including any victims who are particularly vulnerable, such as children. Persons identified as victims or potential victims of human trafficking are provided with accommodation, access to health services and financial support from the State. Child victims or children of victims have access to education at primary and secondary levels. Moreover, under section 3 of the Civil Law (Miscellaneous Provisions) Act 2011, victims of human trafficking may receive free legal advice. This was an important measure that I introduced in the Dáil shortly following my appointment as Minister.

With regard to specific supports for child victims of human trafficking, under the Childcare Act 1991 such victims are notified to the HSE's children and family services. The HSE provides support and protection for all children in need of State care. This includes provision for the physical and psycho-social recovery of a child victim of human trafficking. A full and comprehensive multidisciplinary assessment, overseen by a social worker, and involving medical, psychological and educational services is used to determine the most appropriate and safest placement for the child. Where necessary, a guardian ad litem or a dedicated social worker for the child can be appointed.

All victims of human trafficking have access to a range of services to meet their needs from their first point of contact with the Garda Síochána. In cases where they have no subsisting immigration status, they may be granted an unconditional "recovery and reflection period" for a duration of 60 days. Prior to and during this period, there is no threat of expulsion from the State. Thereafter, temporary residence can be granted - and renewed - so long as any criminal investigation or prosecution is ongoing, with a possibility of seeking a more durable permission on completion of the investigation or prosecution, or after three years, whichever is the lesser period. Provisions to put these administrative immigration arrangements on a statutory footing are included in the Immigration, Residence and Protection Bill, which I hope will be published later this year.

Deputies may be aware that the US State Department recently published its annual Trafficking in Persons Report, often referred as the TIP report. Ireland has again received the top ranking, tier 1, in the country reports section, and this reflects our significant ongoing efforts in this area. We have a well-co-ordinated national plan. It spans the period 2009 to 2012 and it is currently under review. A new action plan for the period 2013 to 2016 will be published later this year.

Ireland has also had the benefit of recent country visits from two international organisations with competence in the field of human trafficking. The Organization for Security and Co-operation in Europe, OSCE, Special Representative and Co-ordinator for Combating Trafficking in Human Beings visited Ireland in early 2012 and the report of her visit was published in March this year. The report recognised Ireland's dynamic anti-trafficking policy and the development of good practice based on a human rights approach and good governance. It also complimented Ireland's comprehensive institutional system, co-ordination mechanism, and consultation and co-operation with non-governmental and international organisations.

A delegation from the Council of Europe's Group of Experts on Action against Trafficking in Human Beings, GRETA, carried out a week-long visit to Ireland in November. The final report from GRETA will be available in the coming months.

The recommendations of all three reports will be taken into account in the process of drafting our new national action plan. The views of the US State Department and international organisations and developments at EU level, along with consultations with State agencies and civil society, will significantly inform the direction and content of the new strategy document.

The Criminal Law (Human Trafficking) (Amendment) Bill 2013 is a short, but urgent, Bill. Its main purpose is to transpose, in full, the criminal law provisions of an EU directive. The directive on preventing and combating human trafficking and protecting its victims was adopted in April, 2011 and replaced an earlier framework decision of 2002. Most of the criminal law provisions in the directive have already been transposed by the Criminal Law (Human Trafficking) Act 2008, which implemented the framework decision. For example, the directive establishes mandatory maximum penalties for human trafficking offences. The maximum penalty set down is five years, or ten years if any of a number of specified aggravating circumstances is a factor. Ireland has a high-penalty regime for human trafficking offences and its sanctions far exceed the requirements of the directive.

The maximum penalty set down is five years, or ten years if any of a number of specified aggravating circumstances is a factor. Ireland has a high penalty regime for human trafficking offences and, in terms of sanctions, far exceeds the requirements of the directive. In this jurisdiction, a person found guilty of human trafficking for the purposes of sexual exploitation, labour exploitation or exploitation for the removal of human organs is liable to life imprisonment.

Article 2.3 of the directive provides that, at a minimum, exploitation for the purposes of human trafficking shall include "the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs". This expands the definition of exploitation in the 2002 framework decision to include two new forms of exploitation. The first of these is exploitation for forced begging and the second is exploitation for criminal activities. The Bill extends the scope of our human trafficking legislation to include both. All the other forms of exploitation specified in the directive are criminalised by the Criminal Law (Human Trafficking) Act 2008.

Article 4.3 of the EU directive provides that member states shall take the necessary measures to ensure a human trafficking offence committed by a public official in the performance of his or her duties is regarded as an aggravating circumstance. The Bill implements this mandatory requirement. Our human trafficking legislation contains separate offences of trafficking a child for sexual exploitation, trafficking a child for exploitation other than sexual exploitation and trafficking an adult. In each case, the Bill provides that where the offence is committed by a public official during the performance of his or her duties, this circumstance shall be treated as an aggravating factor when the court is determining the sentence. Unless a life sentence is being handed down or there are exceptional circumstances justifying not doing so, the court is required to impose a sentence that is greater than would have been imposed in the absence of this aggravating circumstance. I emphasise that these provisions do not arise from concerns about the commission of human trafficking offences by public officials in this jurisdiction. They simply flow from a mandatory provision in the directive. Measures taken in this jurisdiction to address human trafficking, such as the establishment of dedicated anti-human trafficking units in An Garda Síochána, the HSE and my Department, have been commended both nationally and internationally. Our achievements in preventing and combating human trafficking are due in large part to the commitment and hard work of public servants working in a number of Departments and agencies.

I am availing of the opportunity this Bill presents to define the term "forced labour", as used in the Criminal Law (Human Trafficking) Act 2008. The Act criminalises human trafficking for labour exploitation, including subjecting a person to forced labour, but does not define the term "forced labour". For the purposes of the Act, the term "trafficks" is broadly defined. For example, the commission of a trafficking offence does not require cross-border or even internal movement or illegal entry into the State. It includes recruitment, taking a person into one's custody, care or charge, and providing the person with accommodation or employment.

In the context of a recent review of the potential of the 2008 Act to combat forced labour per se, the International Labour Organisation, ILO, committee of experts on the application of conventions and recommendations was asked for its views on whether Ireland's human trafficking legislation is sufficiently wide in scope to encompass forced labour as defined in ILO Convention No. 29 of 1930 concerning forced or compulsory labour. Subject to certain specified exceptions, the ILO convention defines forced labour as "all work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily". The ILO committee is of the view that the scope of the Criminal Law (Human Trafficking) Act 2008 is broad enough to encompass the main constituent elements of forced labour as defined by ILO Convention No. 29. The committee noted the very broad definition of the word "trafficks" in the Act, which includes providing a person with accommodation or employment. It also noted the numerous means of exploitation - for example, coercion, threats, abduction, force, deception, fraud, abuse of authority, and taking advantage of vulnerability addressed by the legislation. It believes that these provisions combined can be applied, in practice, to cover situations in which work is exacted without freely given or informed consent. However, the committee has recommended in the interest of clarity that we define the term "forced labour" in line with the 1930 convention. I am happy to implement this recommendation and appreciate the assistance of the committee. The proposed definition closely follows that of the ILO and it will bring legal clarity to this issue. It is important to note that "forced labour" covers a diverse array of exploitative behaviours ranging from infringement of labour regulations at one end of the spectrum, to false imprisonment, human trafficking, etc., at the other. Consequently, it is likely that activities constituting forced labour could also be prosecuted under a number of other offences, including false imprisonment, blackmail, assault, the coercion offence under the Non-Fatal Offences Against the Person Act 1997, offences under employment law and health and safety legislation, immigration law, etc.

The Minister for Jobs, Enterprise and Innovation intends to bring forward amendments to employment permits legislation. These amendments will ensure that an employer may not benefit from the illegality of a contract of employment where he or she is found culpable in not ensuring a valid employment permit was in place for the employee concerned. Those proposals will complement this Bill. We have a duty to ensure vulnerable individuals are not exploited and a comprehensive approach is taken to tackling the evil of human trafficking.

I refer to the provisions of the Bill. Section 1 substitutes the definitions of "exploitation" and "labour exploitation" in section 1 of the Criminal Law (Human Trafficking) Act 2008 to add forced begging and exploitation of criminal activities to the scope of exploitative conduct criminalised by the 2008 Act. Recital 11 of the directive states the expression "exploitation of criminal activities" should be understood as the exploitation of a person to commit, inter alia, pick-pocketing, shoplifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain. Accordingly, in the Bill, forcing a person to engage in criminal activities, which includes forcing a person to engage in criminal activities outside the State, is defined in these terms - that is, the Bill refers to activity that constitutes an offence and is engaged in for financial gain, or that by implication is engaged in for financial gain.

The section also inserts two new definitions, namely, "beg" and "forced labour" into section 1 of the 2008 Act. The term "beg" is given the same meaning as in the Criminal Justice (Public Order) Act 2011. Begging is not an offence. The 2011 Act created an offence of harassing, intimidating, assaulting or threatening a person or persons, or obstructing the passage of persons or vehicles, while begging in any place. It also established offences of directing or controlling begging and living off the proceeds of begging. For all these offences, the meaning of begging includes soliciting money or goods from a person or persons other than in accordance with a licence or permit, etc., granted by or under an enactment. The same definition can be utilised for the offence of trafficking a person for forced begging. The definition of "forced labour" is in line with the definition of that term in the 1930 ILO convention.

Section 2 provides that where the offence of trafficking a child for exploitation, other than sexual exploitation, or the offence of trafficking an adult is committed by a public official during the performance of his or her duties as a public official, that fact shall be treated as an aggravating factor for the purpose of determining sentence. Both these offences were created by the Criminal Law (Human Trafficking) Act 2008. Unless a life sentence is being imposed or there are exceptional circumstances justifying not doing so, the court is required to impose a sentence that is greater than would have been imposed in the absence of this aggravating circumstance. "Public official" is defined as an officer or employee of a public body, the term "public body" to be construed in accordance with the Ethics in Public Office Act 1995.

Section 3 of the Bill mirrors section 2 for the offence of trafficking a child for sexual exploitation. This offence predates the 2008 Act. It originated in the Child Trafficking and Pornography Act 1998. Section 4 specifies the Short Title of the Act and provides for its coming into operation one month after its enactment.

I am bringing forward two amendments on Committee Stage today. The first of these is an amendment of substance relating to the rules of child evidence, which I hope will be widely welcomed. The second is a consequential amendment. I will elaborate on the detail on Committee Stage, but, in summary, for human trafficking offences, these amendments increase the upper age threshold for out-of-court video recording of a complainant's evidence from 14 to 18 years. They also make provision for video-recording the evidence of child witnesses under 18 years of age. These proposals represent a significant development of the laws on child evidence in this jurisdiction. While the scope is limited to human trafficking offences, the extension of child evidence rules represents the initial phase of plans for a wider extension across other offences.

The Bill is not simply about ensuring compliance with our international obligations. Even if Ireland was not a member state of the European Union or a party to international legal instruments in the field of human trafficking, we would still have a compelling moral duty to protect vulnerable persons from that crime and ensure a hostile environment for those who would exploit the weak and vulnerable for profit and personal gain. I look forward to the contributions of Members during the debate and hope the House will support the passage of the Bill. I commend it to the House.

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