Dáil debates

Wednesday, 1 December 2021

Criminal Justice (Smuggling of Persons) Bill 2021 [Seanad]: Committee Stage (Resumed)

 

8:57 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour) | Oireachtas source

I welcome the opportunity to return to this issue. We were stuck for time on the last occasion. To precis the issue as I see it, maybe the Minister of State will just focus on the net issue, because there are very few people if any, probably no Members in this House, who oppose the principles of this Bill. To ensure that in the context of the dreadful, vile and awful trade with consequences, as described as Deputy Connolly, on thousands of individuals, and those smugglers of human beings who profit from their misery and who are absolutely reckless in relation to the safety of the humans they put in inflatables designed for swimming pools which they put out in waters like the English Channel and the Mediterranean Sea, we need to have firm laws. The existing Act of 2000 that we hoped would deal with this trafficking is not fit for purpose, because there are no prosecutions. There have been two prosecutions, as I understand it, in the last 20 years under this legislation. The net issue presented to us by the Minister of State is that the reason there is no prospect of prosecuting those traffickers is that under the Act of 2000 one has to prove financial benefit to the trafficker. Since that financial benefit is normally accrued in another jurisdiction, it is clear that is a virtually impossible hurdle to prove, so the traffickers are getting away.

We want to close that loophole. That is clear. However, at the same time, we want to close it in a way that means that bona fide humanitarian actors are not captured by the Bill's provisions. I refer to people who, from altruistic motives, involve themselves in protecting vulnerable people to the best of their ability. The Minister of State's solution to that dichotomy lies in section 9 of the Bill, as produced. This provides for the humanitarian assistance defence. It provides that it shall be a defence for an accused person to prove, on the balance of probabilities, that the conduct was engaged in "for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit." The net issue I want to get to is whether that is a sufficient defence to protect bona fide humanitarian actors from the chilling effect of a new law that may dissuade them from, or put them in peril for, acting in a humanitarian fashion to protect vulnerable people who are trying to enter this State, or any other EU state for that matter.

On the last occasion, I noted that the amendment proposed by Deputy Connolly comes in two parts, the proposed sections 9(a) and 9(b). I do not really see any difficulty in the first part being fully embraced by the Minister of State. The first part reads:

A person shall not be considered to have committed an offence under section 6or 7, where the person engaged in conduct alleged to constitute an offence under section 6 or7— (a) in order to provide, in the course of his or her work on behalf of a bona fidehumanitarian organisation, assistance to a person seeking international protection in the State or equivalent status in another state if the purposes of that organisation include giving assistance without charge to persons seeking such protection or status ...

It seems to me that this particular section of the amendment before the House simply excludes from the threat of prosecution anybody who is part of a bona fide recognised international humanitarian organisation. Why that could not be accepted is not clear to me because I do not believe the Minister of State intends that such people should be captured by the Bill.

I want to tease out the second part of the amendment with the Minister. It reads:

(b) for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit.

I am interested in Deputy Connolly's view on this but, on the face of it, this seems to me to simply revert matters to the status quounder the 2000 Act. It would again fall on the State to prove that the actor was trying to benefit materially from the action. We, or at least some of us, have accepted that this is a virtually impossible task because such transactions or payments happen outside of our jurisdiction and in circumstances that are very difficult to prove.

The spirit of the amendment before us is to ensure that we have robust laws that will be effective, and not simply pretend to be effective as we have seen with the 2000 Act, in prosecuting and bringing to justice vile traffickers who profit from human misery while, at the same time, ensuring that genuine humanitarian actors and organisations are not captured by these provisions. I am interested in hearing from the Minister of State as to how he can assure the House that this objective, which I believe to be shared on all sides of the House, will be achieved through the unamended Bill and why the amendment proposed by Deputy Connolly cannot be accepted, at least in part.

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