Kathleen Lynch (Cork North Central, Labour)

The purpose of the law in this area is protection. It is, however, not an offence in itself to sell sex, nor is it, in general, an offence to purchase sex. Consequently, the general position is that neither party to the transaction is criminalised. Much of the motion refers to criminalisation of the purchase of sex in the context of trafficking. Trafficking for the purpose of sexual exploitation is a monstrous wrong and we must do everything we can to combat it. Thankfully, Ireland has strong legislation in place to combat the trafficking of human beings for sexual exploitation. The Criminal Law (Human Trafficking) Act 2008 gives effect to Ireland's obligations to criminalise human trafficking as set out in the various international instruments governing human trafficking. The Act provides for penalties of up to life imprisonment for anyone found guilty of trafficking persons, including for the purpose of sexual exploitation. Specifically in relation to the sexual exploitation of trafficked persons, under the Act, it is an offence punishable by a fine or a term of up to five years imprisonment, or both, to solicit a trafficked person in any place, whether public or private, for the purpose of prostitution. A number of provisions in the Act also offer protection under the criminal law to trafficked persons.

It has been already pointed out that four dedicated units have been established in State organisations to address this issue. A dedicated anti-trafficking unit in the Department of Justice and Equality is working with other statutory, non-governmental and international organisations to co-ordinate and implement Government policy and to put in place arrangements to give effect to Ireland's international obligations regarding this issue. A dedicated unit in the national immigration bureau of An Garda Síochána has a lead role in the policing aspects of this issue. A dedicated unit in the HSE is developing and implementing an individual case plan for each potential victim. A dedicated unit in the Legal Aid Board provides legal advice to victims. Dedicated officials in the new communities and asylum seekers unit in the Department of Social Protection help people who are not in the asylum system but have been granted temporary residence to access a wide range of State services, such as accommodation and other State benefits. Furthermore, dedicated personnel in the Office of the Director of Public Prosecutions deal with the prosecution of these cases.

Other measures that are in place include a national action plan to prevent and combat trafficking in human beings. The action plan, which was published in June 2009, covers the period up to 2012. The multidisciplinary partnership approach that is being pursued was exemplified by the establishment of a round-table forum of non-governmental, governmental and international organisations. Many of the measures being taken to address human trafficking have received favourable commendation nationally and internationally. Having said that, I do not claim that everything is perfect - we all know it is not - or that there is no room for more to be done. There is an absolute need for State agencies and non-governmental organisations, particularly those that support victims, to continue to work together to deal with this issue. The collective co-operation of all of these people will enable preventative measures to be put in place, victims to be protected and perpetrators to be apprehended and brought to justice. The Minister has assured me of his commitment to ensuring those goals continue to be met.

The law relating to prostitution is being enforced by An Garda Síochána. Some 67 cases of brothel keeping were detected in 2010. In the same year, three cases of the organisation of prostitution and 135 cases of other offences relating to prostitution, including soliciting, were detected. In the first half of this year, some 24 cases of brothel keeping, ten cases of the organisation of prostitution and 110 cases of other prostitution offences, including soliciting, were detected. An example of Garda activity is Operation Kerb in the Bridewell Garda district of the Dublin metropolitan region. This operation focuses on prosecuting people who solicit for the purpose of obtaining sexual services and seeks to divert women who engage in street-based prostitution. As part of the operation, the Garda established contact with a number of stakeholders, including the Probation Service and some non-governmental organisations. Ruhama's outreach van was deployed for additional contact with those involved in prostitution. As a result of the operation, over 60 males have been charged with soliciting offences. There also has been a series of Garda operations to target trafficking.

The motion before the House calls on the Government to introduce legislation criminalising the purchase of sex. While it is inevitable that there will be conflicting views about such a proposal, we all recognise that any proposal to criminalise the purchase of sex within our legal framework raises complex issues. Senator Zappone inquired about the legalities of such issues. A provision in the substantially different constitutional and legal framework of one jurisdiction cannot be simply transposed into another jurisdiction's constitutional and legal framework. In mentioning some of these issues, I am not dismissing the Swedish model out of hand, but trying to ensure the debate on it and other international approaches is as informed as possible. That is what we need. If the Swedish approach were adopted in this jurisdiction, one party only to a two-party transaction between consenting adults would be guilty of an offence. The buyer only would be culpable and subject to penalty, with all that entails. The buyer would have no defence in law and the seller would not commit any offence in respect of the receipt of a consideration for sexual services.

Senators with a legal background will be aware that strict liability cannot apply because the Supreme Court has ruled that a defence must be possible. That is the difficulty. These are issues we are talking about and the Attorney General is looking at. One of the difficulties we have relates to strict liability. In its ruling on the CC case, the Supreme Court said there has to be a defence. It is not that the proposal is being dismissed - it is that this serious difficulty needs to be considered. As I said, if we were to introduce this law, the buyer would have no defence in law and the seller would not commit any offence in respect of the receipt of a consideration for sexual services. This is despite the fact that the seller may have been the party who initiated the transaction and been a willing party to the act. Criminalising one party only in this manner, if it was not clearly justifiable on objective grounds, could be open to constitutional challenge in this jurisdiction. By the same token, there obviously would be concerns about criminalising the sale of sex by exploited people.

As I said earlier, the Swedish offence appears to be one of strict liability. Senators may recall that there are difficulties in this jurisdiction in establishing offences of strict and absolute liability, arising from the Supreme Court decision in the CC case. This resulted in the offence of carnal knowledge of a girl under the age of 15, under section 1(1) of the Criminal Law (Amendment) Act 1935, being struck down. The defendant could not plead any defence and the girl could not be prosecuted. The court found that the form of absolute liability in the provision was inconsistent with the Constitution. Senators can read the remaining two pages of my speech if they wish. There are other issues at stake, but the question of strict liability is the one with which we will have the greatest difficulty. We will have to find a way around it and be very careful in doing so. We have to examine this problem. It will be part and parcel of whatever we eventually come up with. I know this is very important to Senators - it is very important to me as well.

The Dignity report will be published at the start of next week. That, along with this evening's debate, should kick-start a broader debate. It is not that there has not been a debate - there has been a clear and informed debate. We need a broader debate about where we go. I spoke to the Minister for Justice and Equality before I came to the Chamber. Ultimately, that is where the matter will lie. He told me he is prepared to ask for submissions from the public as part of the consultation process. Not only will people be able to make written submissions, but they will also be able to discuss the matter at the public meetings around the country that I am sure various non-governmental organisations will arrange. All of the submissions will be considered by the Government, having been first presented to the Attorney General. The advice of the Attorney General will be brought to the Government. He is talking about doing that within six months. He feels that will give us sufficient leeway. We need to be realistic about the need to free up the bills office to deal with the amount of legislation that is coming through relating to our finances and the economy. We have to be realistic about that. All of that legislation is coming down the track at us. This debate needs to take place as part of the process of better informing the public. We need to deal with certain issues and arrive at a formula that allows us to deal with the question of strict liability. It is clear that it will be an issue. I welcome this evening's incredible debate. I appreciate very much what the Independent Senators have done.