Denis Naughten (Roscommon-South Leitrim, Independent)

I move amendment No. 2:

In page 5, line 18, after "State" to insert the following:

"or has been issued with or in possession of a permit to reside within the State".

I apologise to the Minister for not being present during the debate on Committee Stage. Amendment No. 2 clarifies the definition of who might be prosecuted for carrying out or attempting to carry out an act of female genital mutilation in a place other than the State. The purpose of the amendment is to ensure people from outside the European Union, who have a legal right to reside in the State but may not be ordinarily resident within the State, come under the terms of the law. The Minister is using the standard format in Irish criminal law for applying the extraterritorial jurisdiction to specific offences that has been used in other statutes. During the debate on Committee Stage, the Minister said the intention of the amendment was to encompass any non-Irish national who has for permission to reside within the State. If so, it is already provided for within the current wording and the proposed text is unnecessary. If the Minister can clarify this is the case, I am happy to withdraw the amendment. My understanding is that it includes the additional test that the person must be ordinarily resident in the State. If someone has a valid permit to reside here but is not an EU national and is not ordinarily resident within the State, can that person be prosecuted under the legislation? If not, will the Minister accept the amendment?

I accept where the Minister is coming from in respect of current criminal law. The difficulty is that the Minister for Justice and Equality, Deputy Shatter, is introducing new types of residency and permits to reside here or work in this jurisdiction. The Minister for Justice and Equality is about to outline the detail on immigrant investors who can come into this jurisdiction. There is great potential to bring new investment and new capital and create new jobs in the economy and the Minister is correct on that point once proper checks and balances are in place. We all want to see that in place but we could have a situation where someone is between categories and does not meet the criteria of being ordinarily resident in the State yet has a valid permission to reside in the State, as the Minister said on Committee Stage. Can the Minister clarify whether the situation is as he stated on Committee Stage? When someone has a valid permission to reside in the State, can the person be prosecuted in this jurisdiction? If that is the case, I will withdraw amendment No. 2.

Amendment No. 5 is my attempt to address a loophole with regard to dual criminality. The concern is that the legislation as presently drafted could be circumvented by female genital mutilation being performed in a country where it is not a crime. There are many countries where the practice has not been defined as a crime. Some people were mischievous about this point on Committee Stage. The issue should be addressed by ratifying the Council of Europe convention on preventing and combating violence against women and domestic violence. Then, the issue of dual criminality and female genital mutilation would be removed from the legislation. I urge the Minister and the Government to ensure the convention is signed into law as a matter of emergency. The Minister is committed to ensuring it happens and I ask him to use his good offices to ensure it happens. If the convention is signed, the hurdle we must get over with regard to dual criminality can be taken out of the statute. I understand the difficulty arises because we have not ratified it. The Minister has stated that in order to conform with both our own Constitution and international law requirements we must have that threshold within the statute. Can he clarify the difference between this jurisdiction in the Republic and the position in Northern Ireland and throughout the United Kingdom where there is no dual criminality threshold to overcome? The extra-territorial limit we have here is not in place north of the Border. The Minister might clarify the reason that is the case.

This issue was raised in the Seanad and on Committee Stage and I am aware the Minister and his officials sought clarification from the Office of the Attorney General on foot of those concerns to determine if it possible to address the issue of dual criminality. However, in both the Seanad and on Committee Stage the Minister insisted that it is not possible to put in place an alternative mechanism because of the need to have the threshold of dual criminality in that it must be an offence in the country where female genital mutilation is performed. In light of that and accepting what the Minister said about his hands being tied regarding this matter I have tabled this amendment. It comes back to the point I made earlier about sending out a clear message on this issue, something the Minister has reiterated as being a core objective of the Government. We need to clarify the law on this issue.

Irish citizens will not be able to avoid coming under this particular procedure because under section 3 removing someone from the State could ensure that they can be prosecuted. However, the amendment ensures that where the act is committed in a country where female genital mutilation is not defined as being illegal, and where a person is avoiding a prosecution because of the dual criminality threshold, the Minister can, in those circumstances and under the legislation, ensure the matter is brought to the attention of the Minister for Justice and Equality, and we are talking about third country nationals in this case, who can then instigate deportation procedures. There is a clear set of procedures and a number of checks and balances in that regard in our immigration law but we do not want someone to get away scot free with having FGM performed purely on the basis that it is not a criminal offence in the country in which it is carried out. If we cannot prosecute them under the criminal law we must ensure that, at the very least, have them considered for deportation. It puts that additional threat in place. That would assist many families returning to their country of origin in that it may not be illegal in their country, and because of that they cannot be prosecuted under criminal law in Ireland, but as a result of the way the legislation has been drafted their immigration status could be withdrawn and they could be deported from Ireland. That would provide for a significant deterrent, although it is not enough. I would like to see actual prosecutions taking place but we cannot get away from the fact that a huge amount of pressure is being put on those indigenous communities, both in the country of origin and, sadly, in this jurisdiction on occasions, to bring girls back to their country of origin to have female genital mutilation performed.

As it stands the legislation before us, based on what the Minister said both on Committee Stage and in the Seanad about the dual criminality threshold remaining in place pending the signing of the Council of Europe convention, leaves a loophole in those particular countries. It is important to remember that in the countries in which the practice of female genital mutilation is not illegal there is even greater pressure on families to have this procedure performed on their daughters. We do not want those families to return to their countries of origin with the best intentions in the world where a substantial amount of peer pressure is put on them and, as a result, the procedure is performed on their daughters.

In terms of the people who are campaigning on this issue, there is a strong belief at international level that the threat of some sanction, preferably a prosecution under criminal law or at least the potential for the withdrawal of residency and deportation from this jurisdiction, will help families make a strong argument in their country of origin that this practice should not be carried out on their daughters.

We all want a clear message to be sent from this country that people who perform or facilitate the carrying out of female genital mutilation in any jurisdiction in the world are not welcome here, that we will use the letter of the law and every avenue open to us to prosecute them and that if they can get around the law because of this dual criminality loophole in the legislation, we will deal harshly with them and deport them from this jurisdiction. If the Minister is not prepared to accept the arguments put forward by other speakers, including Deputy Ó Caoláin, on the issue of dual criminality I ask him to seriously examine this alternative option which at least gives us some stick to hold over individuals who may try to carry out this practice.

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