Brian Lenihan Jnr (Dublin West, Fianna Fail)

As I explained in detail on Committee Stage, the Government has a comprehensive strategy to ensure Ireland will be in a position to ratify the Council of Europe Convention on Action against Trafficking in Human Beings. The legislation is an element of the strategy and is, therefore, not the entire strategy. That is an important context in which our discussion should take place. I welcome very much the contributions of Members on these amendments. The convention obliges state parties to provide for the protection of victims and the provision of services to them and the Government is committed to putting a strategy in place to address the different issues mentioned by Deputy Coveney, including prosecution, prevention and protection. The Bill is an important element of the strategy because it deals with the substantive offences being created and their prosecution.

Central to the policy underpinning this legislation is putting traffickers out of business and behind bars. We must be careful in the legislation not to do anything that would allow them to escape justice. We must always be careful in law about unintended consequences in statutory drafting. An example of how well meaning statutory provisions aimed at supporting victims of trafficking can cause problems was given in the observations of the Human Rights Commission on the general scheme of the original Bill. The commission, which is a statutory body, made a detailed submission. My Department does not always listen to the commission but its observations on the provision of protective legislative measures in this substantive criminal statute are worth bearing in mind. The commission stated:

The provision of explicit rights for victims in a prosecutorial statute may potentially be characterised as an inducement to give evidence, thus possibly undermining the case for the prosecution. Where certain rights and privileges are extended to victims conditional on co-operation with a police investigation and/or a prosecution, a plausible defence may be mounted to the effect that the victim has been incentivised to give evidence. This may, in turn, diminish the impact of such evidence.

Deputy Naughten rightly said what we want, on foot of this legislation, is successful convictions. The Supreme Court has made judgments on what is an "inducement". In the case of the Director of Public Prosecutions v. Gilligan, the court examined where evidence given by persons in the analogous position of being on a witness protection programme could be admitted. The court ruled such evidence was admissible but struck a note of caution regarding evidence from such persons. In the United States, where victims of trafficking avail of special visas permitting temporary residence while co-operating with police investigations, arguments have been mounted that the perpetrators have an improper incentive in the giving of evidence. We must be careful not to put on the face of this legislation anything that could be construed as an open inducement in the context of the prosecution of these offences. That consideration has weighed on me in the analysis of this issue.

Deputy Rabbitte found it incomprehensible that an element of protection was not written into the legislation. However, that is a fundamental legal consideration to which I must have regard in the drafting of legislation. It is clear great care must be taken when providing for residency rights of alleged victims of trafficking and the services provided to them while availing of those rights. That is why the question of residency is being addressed in the Immigration, Residence and Protection Bill 2008. Similar care must be taken when providing for the different services referred to in the amendments tabled by Deputies Rabbitte and Ó Snodaigh. I do not take issue with the tabling of the amendments because I understand the Deputies' motivation but the practical reality is that the form of their amendments would drive a coach and four through virtually the entire Statute Book, given the range of rights conferred in them. However, the tabling of the amendments in that form was useful because it throws into relief the protections that should and must be available to the victims of trafficking. Care will have to be taken when providing for these services. It is no accident that administrative provision can be made to comply with the Council of Europe convention but we have to provide the services because if we fail in that respect we will not be able to ratify the convention.

As I indicated on Committee Stage, the Government established a high level group to devise the national action plan on trafficking. The plan will be implemented by the relevant Departments and agencies, all of which are represented on the group at senior official level. Deputies will recall that I also announced the establishment of an anti-trafficking unit within my Department exclusively dedicated to co-ordinating and facilitating the national strategy to address human trafficking. A competition was held for the post of executive director of the unit and the successful candidate, Ms Marion Walsh, has been appointed. Ms Walsh has made it clear that she will work with Government and non-government agencies to develop and implement a comprehensive strategy for preventing trafficking, prosecuting traffickers and protecting victims. That is her mandate.

With regard to immigration issues, it was asserted on Committee Stage that the Bill would be useless if alleged victims could not be assured of a period of reflection and recovery. I agree that alleged victims should not have to await the enactment of the Immigration, Residence and Protection Bill 2008 to be assured of that Bill's reflection and recovery provisions so, having regard to the fact that the Bill has been published, I assure the House that administrative arrangements reflecting the relevant proposals in that Bill will be put in place to fill the gap between the coming into effect of the Criminal Law (Human Trafficking) Bill and the enactment of the Immigration, Residence and Protection Bill. These arrangements will allow a foreign national who is a suspected victim of trafficking to be afforded a period of recovery and reflection of 45 days and the possibility of obtaining a further period of temporary residence for six months, renewable as may be necessary to allow the person to assist the authorities in any investigation or prosecution arising. For the purpose of identifying a victim of trafficking, a member of the Garda Síochána shall provide a statement to the Minister indicating that reasonable grounds exist for suspecting the person to be a victim. A statement of those arrangements reflecting the provisions in the Immigration, Residence and Protection Bill will be brought into effect and made available following enactment of this Bill.

Deputy Rabbitte noted that the Immigration, Residence and Protection Bill does not apply to EU nationals but such people do not require any visa or permission to reside in this State. Residency has to be addressed as an issue for persons from outside the EU but legislating for a period of rest or reflection for an EU national would be contrary to our obligations on free movement within the EU. Apart from the question of residency, which will be addressed on an administrative basis pending the enactment of the immigration legislation, the services to which Deputies Naughten and Rabbitte referred must also be provided. The high level working group will have to work with the various Departments to determine the precise services that can be made available to victims of trafficking. Deputy Rabbitte correctly pointed out that the numbers involved are not that large and the relevant arrangements can be made by the Departments. However, in regard to the example of social welfare provision given by Deputy Naughten, Irish citizens who do not have stamps do not qualify for unemployment benefit or old-age pensions.

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