Catherine Connolly (Galway West, Independent) | Oireachtas source

That is good because it would be a burden to stand here, especially after the news the Minister of State has given us.

These are issues that need to be teased out.

On the Minister of State's response to Deputy Tóibín, it was not the Deputy's fault or our fault, but there is no way to be vigilant an hour and a half ahead of time. I was in the Chair and saw what was happening. It should have been teased out at that point and it was not. It was not the Minister of State's fault. He gave his speech but it certainly was not challenged in the sense that it was not discussed or teased out. We are doing it now at this stage, but we need more time to tease it out. I thank Senators Higgins, Ruane and the other Senators who spoke to this amendment, did a huge amount of work in the Seanad and alerted us to this issue. I also thank the Irish Human Rights and Equality Commission.

To put things in perspective regarding deaths, and we have spoken tonight about the tragedy in the channel, the digest tells us - I thank the Oireachtas Library and Research Service for this - that a total of 1,354 migrants have died thus far in 2021, up until tonight, while crossing the Mediterranean. That is just in the Mediterranean. The missing migrants project run by the International Organization for Migration has indicated that migrant deaths on maritime routes to Europe have more than doubled in the first six months of 2021. That is the background to this amendment.

On the Bill itself, a regulatory impact assessment was never published. I might be wrong, but the digest informs us that the regulatory impact assessment was prepared but never published. When we checked further, we found out that only one of the 12 Bills brought forward from 27 June 2020 to 15 September 2021 had a published regulatory impact assessment. I do not know why that is happening.

I will to back to explain why we are tabling this amendment. The Bill has been brought forward under pressure, once again, because of the facilitation package to bring in the EU Council directive, so the specifics and framework are given. The instruments are taken together, they are complementary and are called the facilitators' package. I understand that. Therefore, the person who intentionally assists unauthorised entry, transit or residence of a non-EU national in the EU is to be sanctioned, unless he or she is acting for humanitarian reasons, which is good. However, there is no definition of "humanitarian reasons" in the Bill. To say that person is not being penalised is totally misleading because if someone is charged with an offence, that is a penalty. As it is currently set out, a humanitarian action, whoever does it, whether it is a body, a number of people or those acting individually, as seems to be the case with the two young people who are being charged in Greece, is being penalised. People will be charged with very serious offences that have a very serious penalty and they will have to prove their innocence. There is no presumption of innocence but one of guilt, which is a major change in the law and one without proper scrutiny.

We are implementing a decision and a directive, along with a UN protocol, which we signed up to almost 21 years ago but still have not ratified. That is important. This Bill will enable us to ratify that protocol, or the Bill will be the ratification of the protocol, subject to the Minister of State's clarification, but it has taken us 21 years to ratify it. That was plenty of time to look and see what the problems were. There is more than a nuanced difference between the EU instruments and the UN instrument. The latter puts a clear emphasis on the rights of people being smuggled. It seeks to protect those people and their rights, whereas the emphasis of the EU decision and directive we are implementing is to protect borders. That is my interpretation and the interpretation of the accounts I am reading. That is an important difference when we look at what we are doing. If we accept that background and the difference between the UN protocol and the EU directive, although there is overlap between them and different articles set out different things very clearly, the ultimate aim of the protocol is to protect the person being smuggled. The ultimate aim of this directive and decision is to protect the border. It is very important to protect our borders, but we should do it in a manner that is just, fair and proportionate. I do not think that is what is happening when we put the burden on a humanitarian organisation or individual to prove they have not committed a crime. I have a major difficulty with that.

The absence of data also jumped out at me as did the absence of prosecutions under the Acts we have in place since 2000. That is clearly set out for us in the digest. There were two prosecutions. I understand there is a difficulty in seeing a successful prosecution through, but that is no reason to swing the other way and put the onus on the humanitarian organisation. That is what has happened here. The Minister of State talks about balance but the Government has not balanced the situation, which is difficult because we have no data. We know that. We have no data on the number of people coming in or going out, the number being trafficked and the number of children lost along the way. I have a letter from Tusla I might come back to regarding children disappearing. We have no data collection, which has been pointed out by the Irish Human Rights and Equality Commission, as it has the absence of a mechanism to identify somebody who has been smuggled and who is, therefore, entitled to rights. This is not a criminal but someone entitled to be protected, as set out in the UN protocol, as opposed to protecting a border.

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