James Browne (Wexford, Fianna Fail) | Oireachtas source

Everybody in this House is coming from the same perspective, which is that of trying to protect the lives of those people who are so desperate for a better life that they are prepared to pay somebody to smuggle them into another country, a country they see as providing a better opportunity. We have seen that those people have lost their lives. We saw it only last week, and we saw it in my county of Wexford as well in the past. We see it on our television screens regularly. These are real people, with families, friends and their own culture and history.

It is horrific to see people losing their lives. They are losing their lives when they are being exploited by smugglers. The question for us is how we challenge this situation. We have had laws to take on those smugglers for almost the last 20 years, with almost no convictions. We do not do much for those people being smuggled in high-risk situations. The smugglers do not care about the safety of these people. They just want to get their money, and to get those people on a boat, a raft or into a container. Once the smugglers have their money, they do not care. Therefore, we must figure out a way to change the balance in this context. NGOs are indeed bulletproofed now from any risk at all, but so are the smugglers, effectively. The people being smuggled continue to be exploited. We are seeking to change that balance with this legislation in a way that will allow us to get convictions of smugglers. These smugglers must feel under threat of facing prosecution, and, most importantly, conviction. This will deter them from carrying on their activities and protect people from being enticed into risky smuggling situations.

As I said, the present law is simply ineffective. With this legislation, we are seeking to change the balance in a way that will allow us to get convictions, while also protecting the NGOs. The people who are at risk are our priority, however. Our focus must be on protecting those people and on determining how we can do that. While this law could have been brought in some time ago, I do not agree that it has been delayed. I mean that in the sense that, for whatever reason, previous Governments decided not to bring in this law. I cannot get into the minds of previous Ministers for Justice and previous Governments, but I can say that we are certainly bringing this legislation in. As I understand it, however, it was a conscious decision for Ireland and the UK to stay out of this framework in the past.

There has been detailed discussion of this Bill. The Seanad undertook lengthy consideration and high-level discussion in respect of this legislation. The same has happened here. A guillotine has never been applied to this Bill, here or in the Seanad. Equally, if we do not complete this Stage of the legislation tonight, then we will come back to discuss it again. Let me be clear about that aspect. There is no question of this legislation not getting a serious, conscious, deliberate and deep consideration.

Looking at how we have changed the balance in this context, it has proved impossible to prove the “for gain” element. That is because that aspect usually takes place in another country or the people who are being smuggled are afraid to give evidence that they may have paid over funds. In those circumstances, then, we have looked to effectively reverse the burden in this regard.

However, if we think about the risk that is being alleged against the NGOs, we are very lucky in this country that we do not have a political prosecution system.

We have an independent Director of Public Prosecutions, DPP, who year after year has been proved to be independent and trustworthy. The DPP here would have to make a decision to prosecute an NGO or someone clearly acting out of humanitarian assistance for them to face the risk of a prosecution at all. The DPP makes an assessment as to whether there is a reasonable prospect of getting a conviction. I do not believe that most NGOs or people providing genuine humanitarian assistance would face prosecution. I do not believe that risk is there. I do not believe there is an unjustified or real risk of prosecution. Even when a matter goes to court, there is still a significant burden on the prosecution. It has to prove that the accused intentionally assisted someone to enter the State in breach of immigration law and that the accused knew or had reasonable cause to believe that the entry was in breach. That is a huge burden for the prosecution to prove even under this new law as amended. It is only if those burdens were overcome and someone believed they were an NGO or anybody providing humanitarian assistance, they would have to have gotten all that distance before they would need to meet the burden of proof. They can then raise that burden of proof and they only have to show it on the balance of probability, not beyond all reasonable doubt. There is no question of being guilty until proven innocent. What is being done here has been done in past legislation. I refer to the Illegal Immigrants (Trafficking) Act 2000. I have not seen any evidence that that Act has been misused by the DPP or anybody to get prosecutions against people who have been acting to provide humanitarian assistance.

If we were to accept either paragraph (a) or paragraph (b) of the amendment, we would create an impossible task. The proposed section 9(b) effectively puts us back where we were, as Deputy Howlin pointed out. While I accept that it would give cast-iron protection to NGOs, it also would give cast-iron protection to smugglers. It does nothing to protect the smuggled. Our motivation to change the law is to change that balance in such as way as to protect those acting to provide humanitarian assistance, but to be able to get those convictions. Where someone has been acting on the basis of humanitarian assistance, he or she is best placed to bring that evidence forward. For the Red Cross, that is going to be easy to do. I do not believe anyone is going to be prosecuted anyway but if that burden arises, it would be very easy to do for any recognised NGO.

I fear that the proposed section 9(a) would give rise to the same impossible task. If it afforded protection from prosecution, all it would take would be for somebody alleged to have smuggled to say they are acting for a humanitarian assistance organisation from, say, Libya, they cannot really get any evidence to show that because they cannot go back to Libya due to risk or whatever the case may be. That is the end of the prosecution. It is going to be almost impossible for anyone to disprove that once they raise it. If it is a bar to be prosecuted to say that one is providing humanitarian assistance, that is effectively where it will end. Otherwise, they are prosecuted and we end up in an evidence situation anyway.

I understand why these amendments have been brought forward. The intention and thought behind them are clear and positive. I just think that if they were accepted, it would create an impossible task. We would be in the same situation we have been in for the past 20 years. Important as it is to protect those providing humanitarian assistance - we are protecting them in this legislation - if we go back to where we have been, we will not do anything to protect the smuggled. That is where my priority lies in changing this law. We are not changing this lightly; it has to be done. That is why we are moving forward with this.

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