Oireachtas Joint and Select Committees
Tuesday, 6 December 2022
Joint Oireachtas Committee on Justice, Defence and Equality
General Scheme of the Criminal Justice (Sexual Offences and Human Trafficking) Bill 2022: Discussion
James Lawless (Kildare North, Fianna Fail)
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We almost have a full house. Everybody is very welcome. It is great to have so many witnesses before the committee in person. Good afternoon to members of the committee. Apologies have been received from Senator Ruane. As there are now a number of ways in which members can partake in proceedings, some may drop in and out over the course of the meeting and others will participate online.
I ask both witnesses and members to switch their mobile phones to flight mode because they may interfere with the recording even if they do not appear to do so at the time. The purpose of our meeting today is to have an engagement on the general scheme of the criminal justice (sexual offences and human trafficking) Bill 2022. We are joined by Dr. Salome Mbugua, commission member, and Dr. Nusha Yonkova, head of anti-trafficking, from the Irish Human Rights and Equality Commission, IHREC; Dr. Clíona Saidléar, director of the Rape Crisis Network Ireland, RCNI; Professor Michael Healy, vice president of research, and Professor Michael Breen, professor emeritus, from Mary Immaculate College; Mr. Brian Killoran, CEO, and Ms Mary Henderson, solicitor, from the Immigrant Council of Ireland, ICI; and Ms Edel McGinley, executive director, and Ms Isabel Toolan, anti-trafficking lead, from the Migrant Rights Centre Ireland, MRCI. They are all very welcome.
We also have some observers present. Representatives of the Department of Justice participate in our meetings regularly, although today they will do so in more than just an observer capacity as they will partake in the meeting, and they are very welcome to do so. We have Ms Lisa Doherty, principal officer in the criminal justice legislation unit, and Mr. Deaglán Ó Briain, principal officer, criminal justice policy. They are both welcome to the committee.
I have some housekeeping to do before we get into the business proper. We are late starting today's meeting because a vote was called in the Dáil Chamber at about 2.45 p.m. That often happens and there are knock-on effects for the committee. I apologise for that. We are taking live testimony and this is what happens in these Houses from time to time.
Our witnesses are probably familiar with our rules on privilege. However, I remind them of the long-standing parliamentary practice to the effect that they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable, or to engage otherwise in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they may be directed to discontinue these remarks and I ask them to comply with such a direction if it is given.
The way we conduct our business is to invite each organisation to make a brief opening statement. They will have three minutes in which to make these statements, which is a short period and it passes relatively quickly, but there will be plenty of time set aside over the course of the meeting for a detailed question-and-answer session with the members. What works best is if each group provides a short statement and we then allow members in to engage. Once we have heard from witnesses, the first round will be open to members who will have seven minutes to make their contribution. They can use this time for questions and answers, to make points, or in whatever way they see fit. The seven minutes will consist of a to-and-fro and we will then go around the table again on a round-robin basis with seven minutes per member. If witnesses do not get to reply to a question, we find that by the time the questions are asked by the following speakers, the topics tend to be common and we generally get through all the points. We can also arrange a second and third round of questions, particularly if witnesses or members have points that they have not had the opportunity to make.
The order in which I will call speakers is IHREC first, to be followed by the RCNI, Mary Immaculate College, the ICI and the MRCI.
I invite Dr. Mbugua to make her opening statement on behalf of IHREC.
Dr. Salome Mbugua:
I thank the Chair. I am joined by Dr. Nusha Yonkova, who leads IHREC's anti-trafficking team.
IHREC is an independent national human rights and equality body. Crucially, in the context of today’s discussion, it is also the national rapporteur on the trafficking of human beings under the EU's anti-trafficking directive. Our written submission focuses specifically on the trafficking aspects of the proposed legislation under Part 3. Our input today will focus largely on this area.
Ireland has a significant road to travel in the context of proactively preventing trafficking and, where it does occur, identifying and safeguarding victims while prosecuting perpetrators. For far too long, trafficking was treated as a crime that did not happen in Ireland. In 2008, we eventually legislated to punish this crime, but not for the assistance of victims. The proposed legislation has the potential to rebalance our anti-trafficking response. When we consider that over the course of the past two years there has not been a single identified child trafficking victim in Ireland - not one - it is clear there are significant gaps in our identification processes.
The current interplay between three systems, namely, those relating to international protection, human trafficking and general child protection, represents an elaborate approach to assistance that is not conducive to monitoring and accountability. This has caused the identification of child victims to grind to a standstill. A comprehensive national referral mechanism is at the core of an effective and functioning anti-trafficking response. The proposed Bill will give us a chance to establish a national referral mechanism that will apply to all victims of trafficking, regardless of their nationality and immigration status. It allows for a structured and formal process of identification, separate from the law enforcement process, and one that concludes with a swift and clearly communicated decision.
As national rapporteur, we are concerned about the safety of victims, and their need to have safe gender-specific accommodation, as well as wraparound materials and medical and psychological supports from the time they are identified. The law must be used to provide this minimal level of assistance. When victims feel safe they can begin to recover but we cannot make victims safe if we have not identified them.
I will highlight some other specific core issues. In the context of the focus on sexual offences, victims of trafficking for the purposes of sexual exploitation should be afforded the same protections as victims of rape and other sexual assault offences in criminal trials. Despite the fact that head 5 in Part 2 would extend the provisions for separate legal representation to victims of other sexual offences, it would not extend them to victims of trafficking for the purposes of sexual exploitation. Is sex trafficking not also a brutal and repetitive sexual offence?
There is an urgent need for a separate child trafficking identification mechanism, and an identification process for victims who lack capacity such as children or adults with diminished capacity, including age assessments. The term "exploitation" should be expanded in this proposed legislation to incorporate rarer forms of trafficking for exploitation, such as forced or exploitative marriages, the sale of children and illegal adoptions. The credibility requirement needs to be removed from heads 14 and 17. A low threshold in the context of reasonable grounds to believe is in line with best practice.
If we have a functioning identification system, we can support victims to participate in the criminal justice process if and when they are able. If we do not identify victims, they will be criminalised for other offences, usually immigration or drugs production offences. There is no specific provision in Irish law that protects victims of trafficking from punishment. I ask the members of the committee, as legislators, to fill this gap in the law that victimises the victims and to amend the 2008 anti-trafficking Act to include a specific statutory defence for victims of trafficking where they have committed crimes as a direct consequence of being trafficked. I thank the committee. We urge the swift adoption and implementation of this crucial proposed legislation.
Dr. Cl?ona Saidl?ar:
RCNI welcomes the opportunity to come before the committee to speak about the general scheme of the Bill. We will focus only the sexual offences part. Many of the issues we will highlight have been rehearsed at the Law Reform Commission and in policy papers over the years. We will very much defer to our colleagues in IHREC and other organisations with regard to trafficking.
Head 3 deals with what a jury may have regard to on the question of reasonable belief of a woman's consent with regard to sexual offences. We draw the attention of the committee to subsection (2)(c), on age and maturity. We recommend that it be deleted. There should be no possibility that a boy of 13 or 14 can argue that he was not old or mature enough to know what he was doing and, therefore, is not guilty of rape. Leaving this in would open the door to uncertainty through arguments about how old or mature one would have to be to understand what rape is. Age and maturity are different to mental capacity. We do not believe this is the right place to handle this aspect. The Director of Public Prosecutions, DPP, must consent to someone under the age of 14 being charged with a sexual offence. We believe this is a safeguard to protect a child defendant.
Head 5 extends the scope of separate legal representation for complainants. There are a number of aspects we would like to clarify. The RCNI's view is that any notice of intention to seek leave to adduce evidence of other sexual experience should indicate clearly the categories of questions to be asked, the reasons for asking them and the parameters of the questions to be asked. We would add to the text of the Bill "and/or the rationale for seeking to adduce evidence of the complainant's other sexual experience". The phrase "other sexual experience" needs to be further defined more clearly and comprehensively to include references to pregnancy, miscarriage, abortion, contraception and other indicia of sexual activity. The prosecutor should have a duty to supply the legal representative for the complainant with a copy of her statements before the application for leave to adduce defence evidence or to questioning in cross-examination. Subsection (7) under head 5 is very welcome.
We also welcome head 6. I do not think I need to say to anyone in this room how traumatic and difficult a case is. It is now well understood. Including sexual assault cases in the protections that already exist for rape is very welcome.
Head 12 includes a definition of "sexual exploitation". We recommend that we line up the wording with the Harassment, Harmful Communications and Related Offences Act 2020 to include what is known as deep faking in the definition. I thank the committee.
Professor Michael Healy:
We are the authors of a report on human trafficking and exploitation on the island of Ireland. We have copies of that report for distribution. Our engagement with human trafficking research arises from our involvement with the Santa Marta Group. This is an initiative of Pope Francis to help address human trafficking throughout civil society using improved information and information exchange. The hidden nature of human trafficking means we are dealing with an unquantified phenomenon. This led us to the research we undertook throughout the island for the report and the information we will present to the committee. The report arises from an independent research project that adhered to the most rigorous academic standards.
It was overseen by a select project executive board, ensuring fair representation but balanced by the strictest standards of research integrity. As a result, the report findings are fully independent and non-biased. My colleague, Professor Breen, will now summarise matters.
Professor Michael Breen:
We see the invitation today as an endorsement of the necessity of having high-quality data for both the formation of public policy and the creation of appropriate legislative frameworks, especially when it involves hidden criminality. In our report, we identified 132 probable and possible victims of trafficking unknown to the authorities. We stress that they represent only a portion of the dark figure, not its totality. Given the limited timeframe and resources of the human trafficking and exploitation project on the island of Ireland, HTEPII, project, we consider it likely that further research will uncover more hidden victims. We think it is critical for all available data on human trafficking, including data on victims outside of the national referral mechanism, NRM, to be collected, collated and analysed within a dynamic database. It should include information from all agencies. Mechanisms must be put in place to allow non-statutory organisations sufficient funding, personnel and opportunity to consolidate and register the data. Consideration should be given to the creation of a shared database for use by all relevant parties on the island of Ireland.
We note that the Group of Experts on Action against Trafficking in Human Beings, GRETA, and trafficking in persons, TIP, reports are quite specific about inadequacies of the current system. Working with victims would be greatly enhanced by the provision of quality training for all individuals who come in direct contact with trafficking victims. This training must be gender appropriate and sensitive to the individual circumstances and cultural context of victims. We believe that further research would be of assistance in prosecuting offenders for both sex and labour trafficking, in better training of relevant personnel, in increasing victim identification and in proposing an improved referral mechanism in co-ordination with various official and unofficial actors. Given the critical role that support organisations may play as a source of information about trafficking beyond the official records, it is anticipated that this research is worthy of a significant investment of time and energy across the island of Ireland but, as of now, this work remains outstanding.
Mr. Brian Killoran:
I thank the committee for the opportunity to speak. The Immigrant Council of Ireland is a civil society organisation and independent law centre active in the area of migrant immigration rights and integration since 2001. As a significant element of our expertise, we carry out dedicated activities in support of migrant women who experience gender-based violence. This work focuses on the areas of domestic violence and the crime of human trafficking for the purposes of sexual exploitation. We offer free legal representation through our legal services to victims of human trafficking to address their legal needs. This ranges from early legal advice prior to disclosure to representation about residency and other ancillary matters such as access to education, family reunification and issues relating to their long-term residency status.
In providing this support, we have long identified the need for reform to the process of victim identification as it is carried out through the national referral mechanism. We welcome the commitment of the Minister, Deputy McEntee, and her officials to this reform, as well as recognising many additional positive developments in our national response to this issue, such as the appointment of our colleagues in the Irish Human Rights and Equality Commission as the national independent rapporteur on the issue, the ongoing process of the revision of the national action plan against human trafficking, the increased level of funding to support services providing services to victims of human trafficking, and the third national strategy on domestic, sexual and gender-based violence, which is significant.
However, significant issues remain to be resolved. One is the ongoing lack of development in the integration needs of survivors of trafficking, with the ongoing policy of accommodating survivors in the direct provision system being the single most significant and abhorrent barrier to a survivor’s recovery and ultimate reintegration into our society. This is an issue we can return to in our discussion. As the committee will see from our submission, we have analysed the current proposals in-depth and I will conclude by pulling out some quick points for discussion. I refer first to notable positives. We welcome that the NRM is being placed on a legislative footing as we and others have long recommended. We welcome the non-discriminatory and multi-agency approach, including the creation of trusted partners envisioned, and we are pleased that, as it appears, survivors are not required to co-operate with criminal investigations in order to receive the full range of support. We believe both of these measures will assist greatly in the investigation, prosecution and prevention of human trafficking.
However, in our submission we have highlighted several areas which require attention. The lack of published operational guidelines regarding many of the details of the operation or the proposed revised NRM is a noticeable omission and undermines significant analysis of key areas of the general scheme. Other issues include the lack of clarity regarding whether the operational guidelines will replace the current administrative immigration arrangements, which are a key process in the survivor's journey. It is unclear if the list of bodies in the general scheme referred to as competent authorities is exhaustive and can include additional agencies. Additionally, it is unclear what Government Department the operational committee will rest with, although we understand it is likely to be within the Department of Justice, although that needs clarification. If it is intended to be a stand-alone body, that needs to be clarified. The definition of exploitation in the general scheme should be defined in a sufficiently broad manner to allow for new and emerging forms of human trafficking, as has been mentioned.
As it stands, the general scheme makes no reference to appeal processes, or acceptable administrative timeframes for decisions to be made, which we believe is a significant omission. There is a lack of clarity regarding the sharing of information, what constitutes the consent of the survivor and what level of training and competency must exist within the operational committee, competent authority and trusted partners. As I mentioned, there is a significant issue with integration and the direct provision system being named as the accommodation approach for victims of human trafficking, contrary to the submissions of support organisations, international analysis and the spirit of the directive. The directive is extremely instructive about the level of support that should be provided to survivors and we believe the legislation should reflect this.
As members will see from our submission, there are additional areas where we have raised concerns and recommendations. We welcome the opportunity to discuss those with members. We believe that an opportunity exists in this process to solidify and enhance Ireland's approach in this area. We urge the Minister and Government to take the opportunity, as a significant stand against this horrendous international crime and human rights abuse.
Ms Isabel Toolan:
The Migrants Rights Centre Ireland has also made a detailed submission. I work as an anti-trafficking lead for MRCI. I am joined by director Edel McGinley. MRCI is a national organisation working to promote the rights of migrant workers and their families who are in low-paid employment and at risk of poverty, exploitation and social exclusion. MRCI is a national assessment centre for trafficking for labour exploitation. To date, it has assisted almost 300 people where indicators of trafficking presented across different sectors, including agriculture, the private home, car washes and restaurants, to name a few.
Global estimates show that the number of people trafficked internationally has increased by 10 million to just under 50 million since 2017. Trafficking for labour exploitation has grown to 28 million, an increase of 10% in that timeframe. However, the number of people identified as victims of human trafficking in Ireland, including victims of trafficking for labour exploitation, remains small. Nineteen trafficking for labour exploitation cases were identified in 2021 from a total of 44 trafficking cases referred. These low numbers are reflected in the State’s poor prosecution rate for trafficking and the lack of convictions for trafficking for labour exploitation. Early victim identification is a crucial step in combating human trafficking. Currently, the identification of victims falls to An Garda Síochána alone. The involvement of law enforcement in both the identification and investigation of human trafficking has been widely criticised. Along with leading experts, MRCI has long called for a multi-agency approach to victim identification, which includes civil society. MRCI welcomes this approach in the heads of Bill.
Despite this positive step, MRCI is concerned with three key issues at this pre-legislative stage. The first is the rights and entitlements of victims of trafficking, including immigration status. The most important assurance that we can give to victims is that it is safe to seek help and that they will be provided for when they do. MRCI works with many victims who are reluctant to come forward for identification. Some are still in situations of trafficking when they contact MRCI, such as a man who I will call Mustafa, which is not his real name, who endured appalling conditions for over two years before finally fleeing his trafficker.
He stayed because he needed to make money for his young family, the little he was paid, and because he feared there was no alternative to his trafficking situation than being left destitute on the streets, undocumented, penniless and homeless. The Bill does nothing to address this fear. This lack of emphasis on the rights and entitlements of victims is very concerning. To encourage victims to present for identification it is essential that specific services and supports are set out in legislation. The Bill must explicitly include the right to housing, social assistance, health services and immigration status, at a minimum.
On immigration status, many victims of trafficking are undocumented or lack a stable immigration status. This is a vulnerability on which traffickers often prey. Threats of denunciation to the Garda or of deportation are a commonly used form of coercion, for example, against Mustafa, whom I mentioned earlier. In almost every case where the person is undocumented, the MRCI hears the same thing: "I am afraid to come forward because I will be deported or arrested; my employer told me so." As the Bill stands, there is no reference to immigration status for victims of trafficking who are undocumented or have precarious immigration status. Providing a stable immigration status will enable vulnerable victims to come forward for identification and ensure they can access the services that require that status.
The second point concerns an identification process based on reasonable grounds. We strongly recommend a lower standard of identification than that outlined in the Bill to bring as many victims as possible into the NRM. This reasonable standard is in the current administrative arrangements for victim identification, and it does not need to change. Only with robust victim identification will the crime of human trafficking be tackled effectively. The criteria for identification, at both referral and determination stage, must be based on any and all recognised indicators of trafficking, including the Delphi indicators, which comprehensively list the signs of trafficking.
The right of appeal is fundamental in any process or system. This legislation contains no reference to an appeal, review, or reconsideration. In the interests of transparency and fairness, potential victims must be able to challenge a refusal to recognise them as victims of trafficking. Appeals and reconsiderations must go before an independent body with the power to overturn the original negative decision in the interests of efficiency and compassion.
In summary, the MRCI recommends that rights and entitlements, the use of reasonable grounds and an appeals process be contained in the Bill, and asks that the committee support these provisions. I thank the members for taking the time to listen and we look forward to questions and discussion.
James Lawless (Kildare North, Fianna Fail)
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Deputy Daly has an engagement in the Chamber soon, so I call him first.
Pa Daly (Kerry, Sinn Fein)
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I will have to leave but I will try to come back. I have a few questions for Dr. Saidléar. Regarding her comment on head 5 that other sexual experience should be defined more clearly and comprehensively to include, for example, references to miscarriage. Why has this been included? Has it come up before? I have certainly never heard of a case where this was referred to by a defence counsel in a court case.
Pa Daly (Kerry, Sinn Fein)
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It should be allowed.
Pa Daly (Kerry, Sinn Fein)
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Has a case ever been heard where the question of whether a woman was using contraception or abortion was raised as a defence?
Pa Daly (Kerry, Sinn Fein)
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I am asking specifically about those.
Dr. Cl?ona Saidl?ar:
Yes, questions can be raised about when someone was on contraception, for example, what that might mean and what might be inferred from that. We simply want to list all possibilities to ensure an assessment is made as to whether these are relevant things that can be brought up in terms of that umbrella of-----
Pa Daly (Kerry, Sinn Fein)
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Is it felt that by specially mentioning the items listed, there is a danger? Why not just leave it? This is going to be dealt with in pre-trial hearings. Is this not the intention?
Pa Daly (Kerry, Sinn Fein)
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There is no fear of tying hands?
Pa Daly (Kerry, Sinn Fein)
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Okay. RCNI's opening statement refers to a young man of 13 or 14 and Dr. Saidléar used the word "boy". This is defined differently under the Children Act 2001. The RCNI's argument is that with regard to a young man of 13 or 14, the new head 3 will mention that physical, mental or intellectual disability, mental illness and his age and maturity can be taken into account. Also, section 2(3) refers to the jury being able to "have regard to [all] the steps ... taken by the accused to ascertain whether the woman consented". Defences are limited then in intoxication-type offences. The RCNI is stating that a child of 13 or 14 will not be allowed to argue that he was not mature enough to understand that there were steps it was necessary to have taken and that he should have identified the limits to consent.
Dr. Cl?ona Saidl?ar:
The age of criminal liability is ten. There is a special provision that the Director of Public Prosecutions must consent to the prosecution of a child aged under 14. That point would be the safeguard for us for that child in terms of that adjudication. The ignorance of the law is not a defence of course. The normal interrogation goes on in terms of how someone argues whether they took reasonable steps.
Pa Daly (Kerry, Sinn Fein)
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Okay. In the prosecution for an offence which carries a life sentence, the RCNI's argument, and it is not specified here, is that it is relying on someone in the DPP's office to be able to make this decision.
Dr. Cl?ona Saidl?ar:
-----two separate things here. The age and maturity aspect, we feel, simply muddies the water and that this would be argued out. The consent of the DPP's office is a safeguard and a threshold. There is an assessment there. The steps taken and the reasonableness of the steps taken is something for the courts to decide.
Pa Daly (Kerry, Sinn Fein)
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Yes, but specific mention was made of what are called "young men of 13 and 14". I am slightly concerned about this in the context of such a serious offence.
Pa Daly (Kerry, Sinn Fein)
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I ask Dr. Saidléar to comment regarding the definition of "mental capacity".
Pa Daly (Kerry, Sinn Fein)
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The RCNI is saying this should be ruled out completely for 13- and 14-year-olds.
Dr. Cl?ona Saidl?ar:
We do not think it belongs here in the way that it has been put in here. That does not mean there will not be a consideration of this, as I understand it, within a trial, for example. In terms of writing it into the legislation in this way, we do not feel this is the right place for it. It muddies the water in respect of how justice can be delivered and provided in that case.
Pa Daly (Kerry, Sinn Fein)
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A jury will not be able to consider this aspect. That is the RCNI's argument. Is that correct?
Pa Daly (Kerry, Sinn Fein)
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Okay. I thank Dr. Saidléar.
James Lawless (Kildare North, Fianna Fail)
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I call Deputy Costello.
Patrick Costello (Dublin South Central, Green Party)
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I will start with some general comments for the benefit of the report on the subject at the end. I will then invite anyone who wishes to respond to comment. I may then have some specific questions.
Some of these have been raised by our guests already but I want to set out my view on this so we can ensure it is covered in the report on the legislation.
One of the issues is the lack of a special process for children and child victims of trafficking. This was raised. Tusla raised it in its written submission to us. The Ombudsman for Children's office has raised it with me. That is definitely something we need to look at. I am concerned there is no scope for appeal in this legislation, which I think was raised as well. Any sort of administrative process like this must have a fair process of appeal. It would be useful if our friends from the Department of Justice could clarify some of the decision-making process because the Bill presents it as collective decision making, though I do not have it in front of me. We have already seen a great difficulty in victims of trafficking getting recognised as victims of trafficking. If one particular agency is essentially to have a veto over that, the same situation will continue no matter how many competent authorities or trusted others are sitting around the table. That kind of process must be explored.
On the definitions, there is no real reference to things like the Delphi criteria or the Group of Experts on Action against Trafficking in Human Beings, GRETA, criteria. They are actually wider than what is in the legislation. If our aim is to capture as many potential victims as possible, we should be drawing our criteria and definitions as widely as possible. I would welcome some input on that from the experts before us.
The lack of supports in this legislation has been raised. The recent Scottish legislation requires a very detailed level of supports to be provided by the state once someone is recognised as a victim of trafficking. Our legislation could be much stronger in those terms. Another thing I am conscious of and would welcome our experts' views on is that the Bill as written involves the victims of trafficking coming to a trusted partner or competent authority. Ms Toolan was talking about the difficulties with people who are scared to come forward. If we look at our domestic violence and gender-based violence legislation, there is scope in there for, say, a social worker to apply for a protection order or barring order. That acknowledges the difficulty victims sometimes have in seeking protection. There is nothing in here. The person must make the referral themselves instead of an agency or trusted partner being able to begin that process themselves. The lack of timelines has been raised and I underline that. I will come back to that piece as it is a slight tangent.
Another issue is the list of competent authorities. We have several submissions asking whether the Department of Social Protection should be in there, for example. Many submissions are suggesting others, including the Marine Survey Office, the Workplace Relations Commission, WRC, and the Minister for Transport, given the well-documented role the fishing industry has played in human trafficking. Why are they not competent authorities? I am concerned that if we were to take every competent authority suggested in the submissions, it would be a very long list. Then we are adding in trusted partners, which should also in a way be a long list, but the legislation as it stands says all the competent authorities and trusted partners should meet together. If we have 30 people trying to make a decision, how is that going to work? In a way there is a balancing exercise between trying to cast this as wide as possible while remaining functional. If our guests could speak to that, it would be very useful.
As a tangent, many of the functions performed by the Marine Survey Office should probably be transferred to the WRC because it is the body that can inspect vessels. We need to be conscious in relation to trafficking charges and prosecutions of those who are doing the trafficking. However, that is a tangent and I am conscious of time, and I have taken up most of it. I ask the experts to address the issue around the competent authorities. I would love to hear more about the collective decision making if our friends from the Department can enlighten us on that. Then there is the matter of the correct criteria to use. Should we be making references to the Delphi indicators or criteria or even just ensuring what is on that list is in this legislation, even if we are not naming them as those criteria? There is a minute left.
James Lawless (Kildare North, Fianna Fail)
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Who does the Deputy wish to take the question?
Patrick Costello (Dublin South Central, Green Party)
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Whomever wants to proffer.
James Lawless (Kildare North, Fianna Fail)
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Dr. Yonkova is indicating.
Dr. Nusha Yonkova:
I thank the Deputy. He is very knowledgeable and has expressed interest previously in developing a national referral mechanism, which is badly needed indeed. All the issues he raised are relevant so I will address them shortly.
On the matter of a lack of a special procedure for the identification of children, we know by now the cost of child trafficking is extremely high for society in terms of loss of output and in terms of the personal cost that virtually cannot be recovered. This is why we are concerned no child victims are being identified. We are making a range of proposals, some of them centring around greater legal assistance being afforded to children. We need to think specifically about the procedure that will unfold if the child lives with who are safe parents for the child victim or alternatively if the child is entrusted to Tusla and how they seek and instruct legal counsel in these cases. Parents, for example, are not able to seek such legal advice. Children may not be sufficiently mature to request such legal advice under the Civil Legal Aid Act, which is also being considered now. In our opinion, detailed thinking that is separate and specifically with the child victim in mind has to unfold in order to develop procedures that will address this deficiency. That is an absolute priority we agree with the Deputy on.
On the appeal process, we similarly think we should not be relying on judicial review. Judicial review is extremely costly. It clogs the courts. It is an unnecessary use of court time and it also leads to a severe personal cost in waiting. It is not conducive to the early identification process we must ensure in line with Article 11.4 of the anti-trafficking directive. Our view is that head 14, Application for recognition as a victim of human trafficking, which is carried out by individual competent authorities or trusted partners, should not be a decision process but a duty to refer. It should be an evaluation but it should be primarily a duty to refer with the consent of the person and he or she should be able to make multiple applications for such a referral. However, under head 17 we propose a reconsideration or appeal process so the decisions are reviewed in light of further facts to ensure a separate out-of-court appeal procedure. We have already have precedents in the country and we know how it is done. It will be cheaper, more efficient and less burdensome for everyone and it will safeguard better the rights of the people we putting this mechanism in place around.
On the decision-making process, there are similar concerns about the efficiency of decision-making by so many people. We recommend operational panels are drawn from a larger pool of competent authorities and trusted partners. Those panels should have the necessary expertise to preside over decisions about specific forms of exploitation. We should not, for example, put the WRC in the position of adjudicating on trafficking for sexual exploitation or Tusla adjudicating in cases of labour exploitation. It makes sense to have a smaller committee that is quicker to convene, has a higher quality of decisions and speeds up the process. We all want the process to be speedy so we identify people as early as possible and confer the necessary rights.
The inclusion of internationally agreed criteria, or we might even say nationally agreed criteria, is absolutely essential. We cannot go ahead with the presently included, very short and seemingly random list of identifiers that are put there and we totally support this.
The provision of assistance in statute may be one of the key problems with the general scheme. We have the duty to establish an early mechanism for identification and assistance. If we drop the assistance, our mechanism will not be for identification and assistance. We currently have a system whereby assistance is not provided in law. This leads to divergent decisions, to delays and to victims being deprived of their rights. Thus, we strongly recommend that the system be provided simultaneously and that it be all we have committed to do, from providing material assistance and social welfare supports to accommodation in gender-specific shelters, as opposed to direct provision, which is included in the general scheme. We see a scheme that we are working to dismantle, that is, direct provision included in the proposed legislation. We are strongly of the view that we should not rely on direct provision because we are trying to abolish it.
We see concerns about expanding the list of trusted partners in competent authorities indefinitely but, if an approach is taken in line with what we are recommending with regard to withdrawing expert panels who preside in a very informed manner of cases, the issue will be resolved. With regard to victims of trafficking coming forward, we are of the view a positive step is taken to refer to victims of trafficking as applicants and confer on them agency in the processes, as opposed to what has been happening whereby they are left in situations of complete passivity. There is a good choice for potential victims to turn either to a statutory body or an independent entity to be referred for an identification decision to the operational committee panel. This proactive role is to be welcomed, along with a range of good approaches instilled in the general scheme such as a multidisciplinary approach. My colleagues referred to them-----
James Lawless (Kildare North, Fianna Fail)
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Thank you, Dr. Yonkova. We are out of time for that slot. Some of our members are missing, so we might have more latitude in the context of time. Do any other witnesses wish to speak?
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I wish to speak.
James Lawless (Kildare North, Fianna Fail)
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I will bring in the next member, Deputy Carroll MacNeill. We will have our engagement and may come back around to Deputy Costello if necessary. I wish to give everyone a chance to partake because there are a number of witnesses. I will go to Deputy Carroll MacNeill because she has to be in the Chamber.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I hope to be able to come back to the meeting. I wish to make some points on the submission from IHREC. I completely agree with the first point made by the representatives from IHREC that the provisions for separate legal representation should also be extended for the purposes of sexual exploitation. That is obvious. We have other legislative reference to the point that, "the term ‘exploitation’ should be expanded ... [to] forced/exploitative marriages", and I agree. Both IHREC and the MRCI have made the point about the credibility requirement as opposed to reasonable grounds. This may be a matter to be queried with the Department of Justice in the context of explaining the thinking behind it. I am always interested in the intellectual thinking behind these things. I agree that the word "credibility" is challenging. We are only at an early stage but the thinking behind this should be queried with the Department.
The wraparound supports are not for legislation as such but we have spoken about them in different contexts with regard to accommodation, access to training, counselling and education as being the only real measures. On sexual exploitation and the research project in UCD, it took six or seven attempts for people to try to get out of prostitution. Different degrees of control are obviously being exercised. In the same way as trying to leave a domestic violence situation, however, it is very difficult. Without having support measures in place, it is very difficult to get out.
I will go back to the point Dr. Saidléar made about sexual experience. I would take a different approach and just rule out the provisions with regard to whether a person has had an abortion or what type of contraception the person is on. Those are completely and utterly irrelevant. I would probably go farther than Dr. Saidléar and suggest that it simply be ruled out as a line of questioning. I do not see what it has to do with this. Frankly, I have a difficulty with the questions relating to sexual experience. People can have sex as many times as they like with whomever they like. That has absolutely nothing to do with the instance of rape under assessment. It is a backward approach to ask such questions. I have not reconciled the age and maturity piece that Dr. Saidléar suggests. I know it comes from the Law Reform Commission paper, but there is more thinking to be done with regard to how that works. I am not being critical of either approach, but I certainly have not reconciled that aspect just yet.
In the report compiled by Professors Healy and Breen, which is great - I thank them for providing it - reference is made to 132 victims of trafficking being identified. What was the reference period in that regard? I made a comment on International Women's Day on 8 March that there were 744 women for sale on the Internet in Ireland that day. If one goes by the sexual exploitation research programme data, approximately 87% of those women were migrants. What proportion do Professors Healy and Breen think are victims of trafficking? Can they track their research across that?
Dr. Yonkova's research in respect of Northern Ireland is very interesting regarding the queries relating to the purchasers. I think 60 Irish buyers participated in the survey, which sought to ascertain whether the buyers thought they were buying sex from the victims, whether the buyer asked the question in that regard or whether a buyer ever changed his or her mind because the seller appeared scared, unwilling, frightened, controlled, unhappy, intimidated, hurt or injured or too young. Dr. Yonkova recorded approximately 10% as stating that they believed the seller appeared to be under someone else's control. The survey included more than 400 buyers. It is very important to put that on the record. I agree with Dr. Yonkova regarding the appeal process.
I keep getting the acronyms confused. There are so many of them. Will the Immigrant Council of Ireland representatives talk through the practicality of giving effect to immigration status? Mr. Killoran and I spoke about accommodation and direct provision approximately two years ago, and neither matter has been resolved. He is quite right. I am sorry.
Professor Michael Breen:
With regard to the data, the period under study was the five years from 2014 to 2019. It is a very limited study in that most of it came from the conversation with the NGOs. Almost by definition, we did not have direct contact with trafficking victims. What we have is very strong evidence of why trafficking victims would not come forward. Trying to get them to come forward to give information was almost impossible. The reality is that if we were to work with all of the NGOs and with the HSE on some of its data, we would have uncovered significantly more victims, that is, people who were not identified at the time because they were never tested against the criteria of the Palermo Protocol.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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Of those 744 women, based on all the research Professors Breen and Healy have conducted into this, what proportion of the women were trafficked? I appreciate that it is speculative.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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Of the 744 women who were for sale on Irish websites for sex on International Women's Day, what proportion does Professor Breen imagine, from his research, were likely to have been trafficked?
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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Between 15% and 100%.
Professor Michael Breen:
Yes. I say 15% because that is the percentage of women covered in our study. However, a great many of the women as reported to me, seen on those websites, are very often people from different nationalities and it is very hard to see why somebody would simply see Ireland as a great place to work as a sex worker and choose to go there to make a fortune. That is not my experience.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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However, it is still stunning to hear it stated in so direct a manner.
Professor Michael Healy:
Just to supplement that answer, there is a wealth of additional material could be obtained by closer scrutiny of the NGO records. However, their resources are limited with regard to the amount of time they have to search back through their records or to create to detailed records.
There is an opportunity there, through those VOT systems, to improve our understanding of the scope and the scale. That was a focus of our research.
Professor Michael Breen:
I will make one quick point. One of the dispiriting things I have found with these data is where the victims were not prepared to come forward because life here was better than life elsewhere and they were facing the risk of death if they went home. That is the reality for a significant number of women who have been trafficked for sex purposes. Life here is better than it would be elsewhere-----
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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In those conditions.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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That s why the immigration status the MRCI raised is so important.
Ms Edel McGinley:
I will come in on that, if that is okay. For us, it is important that people have security and that they know what their rights, entitlements and supports are going to be at the beginning stage when they come forward. Right now there is a six-month immigration status. We want to see that extended for a longer period because it is really hard to get work if someone only has a six-month immigration status. It also impacts on family reunification rights. We want a more comprehensive immigration provision for people enshrined in the Bill. Deputy Costello referred to supports being set out in legislation. We want to see that approach here. I know-----
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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That would be very difficult. I am sure Ms McGinley can see that from the look on my face.
Ms Edel McGinley:
I can. We strongly believe that this would increase identification. Someone might come to me and I would have to say to them that I do not know what they can have. I do not know if they can have accommodation or social welfare, or maybe the social welfare office will give them something. They might ask what their immigration status is and I can only say "Maybe it will be this". We need certainty and clarity for people. That must be enshrined in this legislation. There is an opportunity to do that here. We think it would be really beneficial for people. We should be taking a victim-centred approach.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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There is the matter of how it reads across for people in other categories. It is a broader legislative query.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I am talking about identifying one group of people in the State for whom those rights are set out in legislation. I am just trying to tease out the practicalities of it and how that would read across for other groups who are not victims of sexual trafficking. As I said outside, it may just be my lack of knowledge but it is not something I am that familiar with in terms of setting it out in that way. We can always look at it.
Ms Mary Henderson:
Perhaps I could add something here. For certain categories of migrants, their rights are very clearly specified in different pieces of legislation. For example, with access to education and persons who are entitled to SUSI supports, it is very clearly specified what type of immigration status a person must hold. Currently, victims of trafficking who have been granted permission under the administrative immigration arrangements are excluded from that support, but hopefully that is going to change under the draft national action plan. I think what Ms McGinley is getting at is that both immigration entitlements and the measures IHREC has put forward, whether to social welfare, supports around housing, or access to all the various provisions, can be provided for in legislation in the same way they would be provided for international protection applicants or persons granted refugee status. It could be dealt with.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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It is a different model, essentially.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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Fair enough.
Dr. Nusha Yonkova:
On the comment about data, IHREC has been entrusted with the task of gathering data and analysing them. This is what we have been doing since April last year. Our first national report has been published. The data for 2021 were extensively analysed and we obtained data from various State agencies and from NGOs. That additional pool of data held by the NGOs revealed that there is not full overlap between the cases in the national referral mechanism and the cases in the non-governmental organisations' specialist services. Around 40 new victims were captured in the services of the specialist NGOs. Of them, only 30 ended up in the national referral mechanism, which in total had 44 victims last year. This means that some victims are just dropping out of the process or disappearing because they do not consider the assistance offered to victims of trafficking to be sufficient. The extent of human trafficking, which goes beyond those cases captured in the national referral mechanism, is also down to the lack of proactive identification, which has to happen in the sex industry by screening and deploying more targeted labour inspections in the high-risk sectors. For example, it is known that victims of trafficking have contact with medical authorities while they are being trafficked. One report affirms that 80% of victims are in touch with some medical professionals. We would be seeking, outside the general scheme, that human trafficking become a mainstream discipline in all relevant training, including-----
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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I understand. Did Dr. Saidléar want to come in?
Dr. Cl?ona Saidl?ar:
I will come in very briefly on the sexual experience question. We wholeheartedly agree with the Deputy on the sentiment. If we could get that over the line it would be great. The vast majority of those arguments are based in misogyny, inequality and discrimination and they have traction because of that. If we could get to a place where due process did not demand that door to be left open-----
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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Or our perception of it did not.
Dr. Cl?ona Saidl?ar:
It is the jury. At the end of the day, the change will happen when juries do not entertain that argument anymore and the lawyers know that raising it will work against them and against the defendant. That is the idea we are looking for. In the meantime, we find ourselves in this very odd position of listing out, as the Deputy says, all these things that we are trying to control and exclude.
Jennifer Carroll MacNeill (Dún Laoghaire, Fine Gael)
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That will happen some day. I do not disagree with the witnesses, by the way; I am just looking for a reference model.
James Lawless (Kildare North, Fianna Fail)
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I will go back to Deputy Costello because he had more points to raise.
Patrick Costello (Dublin South Central, Green Party)
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I would just like to hear from the others on those points around the competent authorities. What are the witnesses' views on including the Delphi indicators in this legislation, whether by explicitly naming them or simply copying and pasting them so they are all there but not necessarily with the correct footnote? I have a couple of follow-on questions. Will I come back to them later?
James Lawless (Kildare North, Fianna Fail)
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Maybe the Deputy could come back to them later. Let let us take that one for now.
Patrick Costello (Dublin South Central, Green Party)
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If I could I would take over the entire meeting myself.
James Lawless (Kildare North, Fianna Fail)
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Is there anyone the Deputy particularly wants to address that question to?
Patrick Costello (Dublin South Central, Green Party)
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To MRCI, ICI and the professors.
Ms Isabel Toolan:
We had recommended more generally to include any and all indicators of trafficking and then gave the example of the Delphi indicators, which I use when assessing trafficking cases. They are incredibly helpful. There are 67 of them for trafficking for labour exploitation within various dimensions. It is almost a mathematical process but they are very comprehensive. There should be as many indicators of trafficking as possible. Some of them, such as the Blue Blindfold indicators on the Department of Justice website, are very short and comprehensive and are very clear on accommodation and conditions. Maybe that is easier or more direct for someone to use. We go for a very broad approach because we need to bring as many people into the national referral mechanism as possible. We need to tackle this crime more effectively.
Ms Mary Henderson:
The indicators should certainly be specified. We would take a much broader approach and suggest, at a minimum, that the Delphi indicators be written into the legislation, but to also account for what IHREC has put forward, that is, a nationally agreed set of indicators to have it broadened out. Regarding some of the other points the Deputy raised, a lot of what he has pointed to, especially around the lack of child-specific measures, is actually provided for within the directive. It is also set out within international best practice recommendations, such as within the OSCE recommendations or in the handbook that has been published by the Organization for Security and Co-operation in Europe, OSCE.
The Deputy mentioned the jurisdiction of Scotland where there is a specific child advocate service that is appointed to all victims of human trafficking. The directive provides that a guardian shall be appointed to all unaccompanied minor victims of trafficking and also provides for a scenario where a parent or another person in loco parentisis not acting in the best interest of a child and it requires that a guardian be appointed in that scenario. At the moment, guardians are not appointed to children at all within the Irish childcare system so we are already far behind in meeting those kinds of standards. We emphasise the necessity to have a child-specific system brought in.
Some other matters were mentioned. We agree there is a lack of scope for appeal and a lack of clarity around the decision-making process. It needs to be emphasised what that is. Again, the OSCE provides very specific guidelines as to what timeframes would be acceptable. It sets out an initial five-day period for an initial decision and then a maximum of a 90-day period for a subsequent determinative decision. That is reduced considerably for children.
On the difficulty of victims of trafficking coming forward, we call for broad training so that, even where there may be limited competent authorities that will make the formal referrals to the committee, it can be the case that many agencies are practically and appropriately trained to identify the indicators. Again, that causes the necessity of having those indicators properly represented.
One point we want to emphasise - I am not sure whether it has been referred to - is the non-prosecution principle. We agree with IHREC's submission that this should be written in to the legislation to be very clear that victims of trafficking should not be prosecuted for any offence they have been compelled to commit as a result of their trafficking. We need to be very clear on that point. Again, this is written into best practice guidelines and the directive. I do not believe we are meeting that standard as yet.
Regarding the definitions, as well as reasonable grounds being the necessary way in which an assessment is made, we would also set out that the definition of exploitation has to be as broad as possible, not only to account for forms of trafficking that have been identified to date but also to account for new forms of trafficking that may arise in the future.
On the competent authority and the committee decision-making process, it is very difficult to comment on that because we have not been provided with the operational guidelines. Again, we draw the attention of members to the guidelines that are set out. The NRM handbook produced by the OSCE has a long list of 57 recommended standards that ought to be met. That is what should be scrutinised either in the legislation or when the operational guidelines are put forward to ensure that those standards are met. I think I have covered all of the issues.
Mr. Brian Killoran:
I will expand a little on some of the integration and support points that were made, including by the MRCI. When service providers can give the greatest clarity possible to people they are working with, either as an independent law centre such as we provide or in another context, we believe it not only improves their chances of engaging with a process or getting over the trauma they have gone through but also of potentially engaging with investigations. We welcome the suggested removal from the Bill of the necessity for people to co-operate with investigations. Where adequate supports are put in place to enable a person to be reintegrated essentially, it puts the person in a situation where he or she can better co-operate and will ultimately assist in the prosecution of traffickers.
I draw attention to the accommodation issue surrounding direct provision. I know it has been said in many environments multiple times but it is worthy of reflection again. As Deputy Carroll MacNeill said, we have been talking about this issue for a number of years. In fairness to the Department of Justice, accommodation was well progressed under it had the remit for it. It was then moved across to the Department of Children, Equality, Disability, Integration and Youth, which is the responsibility of the Minister, Deputy O'Gorman. We have not seen any movement on the proposals, which have been mentioned a number of times, for shelter accommodation to be developed, even on a pilot basis, to accommodate victims of trafficking. A small number of them are outside the direct provision system. There is no clear reason that this matter has not been progressed. We understand it is to come about in quarter 1 of next year. We would welcome the committee's engagement on the issue because movement on the accommodation rights of victims of trafficking is a substantial barrier to people being reintegrated into society and getting over the trauma they are in. We will have had numerous instances through the years of a victim of trafficking in a room sharing a room with a number of other people, some of whom are coming and going, while the victim of trafficking remains there for a number of months and even, in some cases, a couple of years. In those kinds of instances, it is almost impossible for them to be reintegrated and get over the ordeal they have gone through. The pieces are in place to progress the accommodation issue but that has not happened as of yet. We we need to see movement on that.
On the safeguards that should exist in the system, such as appeal mechanisms, these are standard in these types of circumstances. As service providers, it is normal that cases that are presented will vary. There needs to be an inbuilt mechanism whereby appeals can be made to avoid the only other option being judicial review. To have a significant gap between an initial decision and a judicial review is not acceptable for anybody. We need an appeals process within that as well as acceptable timelines for decisions. If we can explain to somebody sitting on the other side of a desk in a support service of some kind what the expected timeline for decisions is, what the expected level of support will be and how that will look and provide as much transparency and coherency around that as possible, it assists everybody in the circumstance. The Bill presents an opportunity to flesh that out significantly and put as much of it as possible into legislation.
Ms Edel McGinley:
I will comment on the competent authority, the operational committee and the trusted partner. For this to work, as we have said for years, it needs the involvement of civil society and NGOs. In order for the Department to build trust with organisations like ours and others to come forward to participate in that we need a large degree of clarity around how this will work. There remains a lack of clarity around how the operational committee and competent authority will work. It is not clear in legislation how they all interact with each other. As we move into the next stage, that clarity really needs to be brought to bear. If we do not get this right, we will have wasted time, money and effort. The Department and NGOs are all acting in good faith and we all want this to work but we do need more clarity as we go forward about how all of these things interact. If we do not get that at this stage and move into Second Stage, it will be really difficult in terms of the longer term impacts. We are all in this together and we all want this to happen. We would like to see more clarity on that because we have questions too.
James Lawless (Kildare North, Fianna Fail)
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I will ask a few questions and Deputy Costello can ask further questions. Members may drop in and out of the meeting because a number of us are participating in the justice debate taking place in the Chamber. I will need to go to the Chamber shortly to contribute.
The Rape Crisis Network referred to the prosecutor supplying a copy of the statement to the complainant prior to cross-examination or questions. There is also a reference in the IHREC statement to sex offences and providing further protection to victims. That is not addressed in this Bill but is in other legislation. I should mention for the witnesses and other interested parties that the committee carried out a study on the experience of complainants in sex offence trials and hearings about a year ago and produced a report. One of our recommendations was that there should be separate legal representation for complainants. I struggled for a minute when thinking about the prosecutor handing a copy of the statement to the complainant. I wondered first if that happens automatically already but I do not think it does. It is not really the defence's duty to do that either. The prosecutor has a slightly separate role, as we all know, in a courtroom.
The prosecutor is not just there to get a conviction at any cost, but also to keep the court right. The prosecutor is almost a neutral party as well as being a prosecutor. The committee recommended that there be an independent legal representative to accompany, assist and advise the complainants. This would be a third party in the court room, as it were. Our recommendations should apply as much to this Bill as they do to any other. The reference to this matter at the outset caught my eye.
So that we are all on the same page, the Delphi indicators were mentioned. What are they? Will the MRCI walk us through them briefly?
Ms Isabel Toolan:
Delphi is a methodology. A group of academics from the European Commission and the International Labour Organization, ILO, formed a set of indicators for various forms of trafficking - child, sexual exploitation and labour exploitation - and put them into six dimensions. Those dimensions must be fulfilled in various ways. The dimensions are coercion at destination, coercive recruitment, deceptive recruitment, exploitation, abuse of vulnerability at destination, and recruitment by abuse of vulnerability. There are strong, weak and medium indicators and they can combine. It is a complex but comprehensive system. When I assess a case for trafficking for labour exploitation, I consider all of the dimensions, see how many are fulfilled and count up the indicators. Some are strong, some are weak and some count more. It is almost a scientific system, but it allows someone to assess the whole circumstances of a case. It is useful when guiding questions with a victim.
James Lawless (Kildare North, Fianna Fail)
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I thank Ms Toolan. That is useful to know.
I will ask a smattering of questions based on the various submissions. The first will be for the Department of Justice. It has been highlighted that there is no right of appeal under the Bill. This seems unusual, given that almost every administrative decision or statutory framework includes a right of appeal, usually to the High Court on a point of law. Is such a right envisaged at a later stage? How does it stand?
James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Ó Briain. That seems appropriate. He might be also able to advise us on another matter. IHREC's submission made a request that there be a statutory defence for victims of trafficking where they committed a crime as a direct result of being trafficked. Innocent agency, duress and coercion are common law defences, but IHREC was referring to a statutory defence. Recently, we considered what was colloquially called Fagin's law, which is more about the procurement of crime and an individual organising or mobilising other individuals to commit crimes. It refers to the Dickens character Fagin, who had pickpockets running around for him. Would Fagin's law apply under this Bill or would the Bill have to be amended to incorporate it? If Mr. Ó Briain or someone else wishes to contribute on this point, he or she is welcome to do so.
Mr. Deagl?n ? Briain:
I can address it, as I have been involved in discussions at the Council of Europe on exactly how to give effect to the non-punishment principle. As members will see from the general scheme, our preference is for a prohibition on prosecution for immigration offences that are inherent in the fact of having been trafficked, but that is as far as we go. Other offences will be left to the prosecutorial guidelines that the Director of Public Prosecutions has produced. This is a difficult question. We have examined other member states. The UK has a system that is complicated but still involves someone making case-by-case decisions. We could not contemplate a blanket prohibition on prosecution for serious offences of sexual assault and so on. We believe that is best left to the professional competence and independent judgment of the DPP.
James Lawless (Kildare North, Fianna Fail)
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I thank Mr. Ó Briain. Professor Breen stated that the conditions of someone who had been trafficked to Ireland and was working as a sex worker or being exploited were sometimes still better than they were at home. That is shocking, although probably not surprising. Does Professor Breen wish to elaborate?
James Lawless (Kildare North, Fianna Fail)
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In one sentence, that says it all. It is striking. We will take the next round of questions now.
Patrick Costello (Dublin South Central, Green Party)
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I will ask a couple more questions. Unless I am mistaken – I am sure someone will correct me if I am – the general scheme suggests that the rules, guidance, procedures or standing orders, for want of a better term, will be decided by the operational committee. Have the witnesses a view on whether this is the right way or whether the procedures should be set by statutory instrument? The advantage of the latter is that, while some flexibility would be lost, the Minister could set the standard herself in a more publicly transparent way.
What would a specific service for children look like and how would it differ? If a child victim of trafficking is referred, should a guardian ad litembe appointed to him or her? Many of these will be separated children. I assume that, if a child is in a dangerous situation, is separated from family and is going to be taken into State care, which was a point raised by Tusla in its brief written submission, the child will likely be referred to the separated children's team. Would an allocated social worker from that team be advocate or support enough or should we be considering a guardian ad litemas well? There is the risk of a social worker not being allocated, but that is a matter for the children's committee.
I have a question for Professors Breen and Healy. I suspect I know the answer, but I will ask anyway. Are we adequately researching, and funding research into, this issue? Most of what we are discussing operates in the shadows. How can we shine a light into those shadows?
I am conscious that, due to my long contribution earlier, Professors Breen and Healy did not get a chance to respond. Is there anything else they would like to respond to concerning my contribution?
James Lawless (Kildare North, Fianna Fail)
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I suggest that, if witnesses wish to make closing remarks, they should do so while responding, as this will be our final round of questions.
Professor Michael Breen:
We believe there are data within the NGOs. Being adequately resourced would help some of them to deal with their data and compare them to the protocols, as doing so would take a great deal of work, effort and time. The answer is that research is not being adequately resourced.
There is then the question of how long is a piece of string. This is an area that money can continue to be poured into. We stand over the statement that the level of hidden victims uncovered in the HTEPII report is a small proportion. It is certainly not the totality, and no one could reasonably say it was.
Patrick Costello (Dublin South Central, Green Party)
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I saw an estimate of 8,000 victims. Is this a more accurate figure or is the real figure unknowable, given that, by its nature, trafficking operates in the shadows?
Professor Michael Healy:
Our project was very small, time bound and limited in terms of personnel. I must publicly recognise the generosity of a number of State bodies, including the Garda and the Department of Justice, as well as the PSNI and the North's Department of Justice, that contributed. There is a willingness to provide some resources for this kind of work, but there is not as much available expertise on the ground to conduct the work in a more thorough fashion. As Professor Breen mentioned, we believe there is a substantial additional body of data that could be mined for this purpose.
By way of a closing remark, I would just say that whatever we do, we need to build trust among this exploited community who are victims of slavery really in many respects. Whatever provisions we build into the Bill and the legislation, we should make sure that trust is conveyed through that and also that mistakes are avoided so that we do not introduce barriers that would make the situation worse for the future.
Dr. Nusha Yonkova:
I would like to make two quick observations on what you raised, Chair, and also to answer Deputy Costello. On framework operations for the operational committee, we strongly believe this is too important to be left in secondary regulations. We would like to see this prescribed in law. We are very interested also in the legal status of the operational committee, how it will be constituted, who will bear responsibility and hold the decisions. Our absolute recommendation would be that we put as much as possible in primary legislation so that it is scrutinised and operationalised properly.
On child trafficking, it is clear, and this general scheme refers to it, that when child victims are identified they will avail of assistance provided by Tusla child protection services. Regardless of their circumstances, children are falling within the system of protection that is designed for children with Tusla. They are also subject to consideration in respect of international protection. The very unit that deals with children who do not have parents is called separated children seeking international protection, which may not be applicable to all cases. We would be wondering why there is not a specialised unit with Interpol that deals with child victims of trafficking. We would flag as very important the issue of age assessment and what happens when age is disputed. We have not provided sufficiently in law up to now for age assessment. This arises in cases pertaining to victims of trafficking. This is an opportune time to address those issues.
I would like to address the principle of non-prosecution and our recommendation for a statutory defence where a suspected victim has been involved in unlawful activities as a result of the crime that was committed against the victim. We do not see this as an extra. We see it as a safety net, a mechanism that will guarantee human rights of the victims and prevent revictimisation. We know these cases exist. Ultimately, this provision encourages the victim to co-operate as a witness in criminal investigations.
I have one comment on credibility which I was not able to share earlier. We see credibility added to reasonable doubt as an unnecessary additional condition which artificially raises the threshold that is required. Credibility is not required in international law. It might be problematic because it may hold different meaning for the different members of the operational committee. It may lead to divergence in decision-making regarding credibility and will ultimately cause delays. All we want is an early mechanism for identification and assistance.
Dr. Cl?ona Saidl?ar:
I wish to back up what Professor Healy said about data and NGOs. If there is an opportunity to write that into legislation or support it in some way here it might be something we should follow up on. It is a critical piece. When vulnerable populations, who have difficulty accessing anywhere, do access services, we need to be able to community effectively back up into policy what we know and also keep that door open in terms of access. I am not sure legislation is where that lives. We already have the Data Protection Act. We will certainly come back to Professor Healy because it is a critical part of the picture.
To reiterate, for us one of the big advantages here is encompassing sexual assault victims into the protections that rape victims enjoy already. There is an opportunity here to address a range of other gaps that we have in sexual offences at the moment. We would identify some of those and have listed them in the written submission. We do not have an offence of digital rape at the moment. There is an EU victims draft which does include that. This is an opportunity to get ahead of that. In terms of voyeurism, there is also the voyeurism where an individual is not aware they are subject to voyeurism. There is a gap there. We think there is an opportunity to expand access to special measures quite significantly here. That is important as they are quite limited. We have intermediaries in place now. It is a really specialised and important piece of work. We are under-utilising them currently and this is an opportunity to expand that to not only support around questions but also around answers and to equip the judges to allow for novel ways of providing that access. That is my closing list.
James Lawless (Kildare North, Fianna Fail)
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I thank all the witnesses for their time today. Does Ms McGinley want to come in?
Ms Edel McGinley:
Just a final comment if that is okay. We would like to see those areas addressed. I am delighted to hear the appeal mechanism, whatever that looks like, will be included now. We are worried that we are not hearing that the rights and entitlements will be included. That needs to be looked at. We need more clarity around how the system will actually work. We would support the IHREC to have as much included in primary legislation as possible, although secondary legislation can be an option for some issues. I am not clear about what is being said about the data. We would definitely resist anything compelling us to share our data with anybody. It would have to be voluntary. I am not really sure what that comment is around the data. I would not like us to think that everyone who works in sex work has been trafficked, either. We need to be careful around that. It might be useful to elicit some views from the Sex Workers Alliance Ireland on some of this as well.
Ms Mary Henderson:
I was just going to make some comments on the child-specific procedure. As Dr. Yonkova pointed out, the first consideration needs to be the best interests of the child. They need to be addressed. It is clearly provided for in the directive as to how that ought to be done. As assessment has to be made that a person is, in fact, a child. Until they are determined conclusively not to be, they ought to be treated as a child. Second, we would ensure that any assessment is done in an appropriate manner. The Immigrant Council of Ireland made submissions to the UN Committee on the Rights of the Child which we can provide to the joint committee to set out a specific age assessment procedure that ought to be adopted. I agree that a guardian ought to be appointed and not a guardian ad litem. It is not necessarily in respect of court proceedings that a child victim of trafficking is going to be interacting with the State. They will be interacting with a number of different agencies to access their entitlements to services. They may not be participating in a court process. One of the aspects of the heads of the Bill that we welcome is that co-operation is not a requirement in order to access services and be recognised as a victim.
We would also draw attention to the fact that we are fully aware of where systems have failed in the past for appropriate persons to be appointed to represent the interests of child victims of trafficking where children have not been identified as children and as a result have not had access to child-appropriate mechanisms. There are imbalances in service provision of childcare services throughout the country. I do not think they should all be referred to the unaccompanied minors unit, not least because that unit is already very burdened but also because not all child victims of trafficking are going to be seeking asylum.
Equally they are not all going to be migrants. They could also be Irish citizens. They may need access to a range of different processes that are not necessarily migrant-specific. We really have to move away from victims of trafficking only being considered as migrants or non-EUA migrants. There are European migrants and Irish citizens who are victims of trafficking also.
On the person who is appointed to represent the interests of the child, we emphasise that they need to be appropriately resourced, that is, not to use systems that are already extremely stretched to plug gaps but actually to develop a system in line with best practice that ensures the service is victim centred, child specific and child friendly. On head 16, nobody has looked at the data-sharing provisions within the operation of the committee. We draw attention to the GDPR and the requirements of the law enforcement directive as guidance on how information has to be shared between competent authorities and then how trusted partners would only share with the consent of an applicant. This is something we support. It is vague in how it is drafted at the moment and difficult to comment on how it will actually operate. Finally, I emphasise that any person of any nationality or any migration status, be it undocumented, an asylum seeker or somebody else who has another entitlement to reside in the State ought to be able to access this national referral mechanism, NRM, in order that they can be properly identified as a victim of trafficking or of crime with additional problems.
Mr. Brian Killoran:
I will make some closing remarks to re-centre the conversation around the understanding that we are, as Ms Henderson said, in many of these instances supporting people who are themselves victims of crime. We have the opportunity through the NRM and the Bill essentially to flesh out and describe some of the supports we can provide to some of the most marginalised groups we have ever encountered as an organisation over the years. That is also the shared experience of many of the other groups here today. We want to bring clarity and transparency to those who are participating in the revised version of the NRM and those who operate the channels that will come into this in regard to referrals, and those who are potential identifiers of victims of trafficking, to increase our identification rates particularly in regard to children as has also been mentioned. The clarity for survivors is essential as well because we are on a day-to-day basis holding the hand of somebody on the journey from being a victim to being a survivor. To do that we need to be able to describe what the next few steps will look like and what rights and entitlements are going to inform them. We seldom get these opportunities to revise this kind of legislation and we wish to populate it as far as possible with a very clear system of rights and entitlements that we can build around it in regard to integration supports that ultimately stem from immigration status or identification within the system. I refer to safeguards that were mentioned about protection from deportation. In its submission IHREC mentioned the good point about protection from the Dublin regulation which means potentially being moved out of the country to another EU country, and protection from prosecution as well. All of these things build our supports around a very niche area within the experience of exploitation in the area of trafficking and sexual exploitation in Ireland. All of our organisations have extensive experience and resources that we repeatedly make available to the committee as required. We appreciate the opportunity to do so.
James Lawless (Kildare North, Fianna Fail)
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I thank all the witnesses and stakeholders who were with us today. It was a very useful meeting. I thank those who gave their time, inputs and valuable expertise. We will publish the opening statements on the committee's website. Most witnesses are probably familiar with our procedure but in case they are not, we will follow this up with a report of today's hearing. We will summarise the findings, report on all the evidence that was given and make findings across the committee and outline what we need to do next, which we will publish in the new year. That goes back to the Minister and feeds into the process before the Bill moves to the next Stage. That is how the process works. That report will be launched in due course. We will be in touch again around that time. I want everyone to be aware that their contributions feed in and are captured. They play an important role in the drafting and finessing of the legislation.