James Reilly (Dublin North, Fine Gael)

I accept the bona fides of the Members opposite in regard to trying to close off any possible loopholes. On a general note I have to make it clear that I operate under the best advice from the Attorney General. It is my intention to address amendments Nos. 2, 3 and 5 together.

Amendment No. 2 relates to the definition of who might be prosecuted for doing or attempting to do an act of FGM in a place other than the State. The current text of section 4(1)(c) is a standard format in Irish criminal law for applying extraterritorial jurisdiction to specific offences and is used in other statutes such as section 8(1)(c) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, section 4(1). In conjunction with section 4(4), it extends jurisdiction over any Irish citizen as well as any EU or non-EEA citizen for whom Ireland is the principal centre of residence.

The proposed amendment would seem to extend the scope of the extraterritorial offence provision to any non-EEA national who has been issued with a residence permission or who is in possession of one. The amendment does not specify whether the permission should be valid and its current format would extend jurisdiction over anyone who has ever been issued with a residence permission by the Minister for Justice and Equality, irrespective of whether that permission has been withdrawn, expired or the foreign national in question has ever availed of the permission to actually reside in the State. If Deputy Naughten's intention is to encompass any non-Irish national who currently has a valid permission to reside in the State, that is already provided for in the current wording and the proposed text is unnecessary. I do not, therefore, propose to accept this amendment.

Amendment No. 3 proposes to remove the requirement for dual criminality from the Bill. As the Deputies might be aware from previous Oireachtas debates on this Bill, this requirement has been included to conform to constitutional and international law requirements and was inserted into the Bill on the advice of the Office of the Attorney General. The issue has been considered in some detail by my officials and the Office of the Attorney General, and following a further review and additional advice sought from the Attorney General, the current provision on dual criminality stands.

A Deputy referred to the different laws in the UK. The UK FGM Act of 2003 does not include a dual criminality requirement because its Government is not bound by the requirements of a constitution that demands it, such as ours. The Bill does, however, provide for offences that relate to removing a girl or woman from the State for the purposes of doing FGM to her and this section mitigates the need for a dual criminality requirement.

Only in exceptional cases are extraterritorial offences in criminal law are provided for without a dual criminality requirement. Under international law only offences jus cogens, that is against the conscience of the world, such as piracy, war crimes and terrorist acts, carry universal jurisdiction. At the current time FGM, when carried out privately, is not an international crime but general principles of international law are developing all the time. Therefore, the view that FGM is not an international crime is open to change depending on development in the area.

In addition, Cosc, the national office for the prevention of domestic, sexual and gender based violence is currently examining the Council of Europe's convention on preventing and combating violence against women. Under terms of this convention the practice of FGM is condemned and it provides that there should not be a dual criminality requirement. The removal of dual criminality from female genital mutilation legislation could be revisited if and when the convention is ratified by Ireland. To ensure we would be in a position to prosecute a person who takes a girl to a country where female genital mutilation is legal, that is, a case which could not be prosecuted under section 4 because of the requirement of dual criminality, the Bill provides an innovative offence in section 3 - the offence of removal from the State of a girl for the purpose of female genital mutilation - to cover such conduct so that the offence provisions in sections 3 and 4, when read together, should cover all of the conduct which ought to be criminalised in relation to female genital mutilation. I do not, therefore, propose to accept this amendment.

Amendment No. 5, proposed by Deputy Naughten, would require the Minister for Justice and Equality to be informed that a person is not prosecuted of an offence of female genital mutilation because that offence has been committed outside the State in a jurisdiction where it is not criminally prohibited. Sub-paragraph (b) of the Deputy's amendment provides that, on receiving this information the Minister will initiate proceedings under section 3 of the Immigration Act 1999 against any such person who is not an Irish citizen. If I understand the amendment correctly, this is an attempt to circumvent the dual criminality requirement by attaching some sort of sanction in cases where this requirement might prevent prosecution. However, this type of provision would go against the principle of legality, that is, that someone should not be punished for an offence which was not an offence in the jurisdiction in which it took place. Therefore, I cannot support the amendment and I urge the Deputies not to support it either.

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