Catherine Connolly (Galway West, Independent) | Oireachtas source

I think it has to be done because the Minister of State is under pressure and he has to have it completed by the end of the year. That is why it has to be done. I do not think five to eleven at night time is an appropriate time to tease out the nuances of this legislation. It should have been done at the relevant committee, with submissions from the various organisations involved to help in tease the matter out. I am left with no choice but to press an amendment. If the Minister of State tells me it is imperfect, I accept that. It is the best I could do and the best the Senators could do in the Seanad. If the Minister of State and I keep repeating ourselves, that is not teasing out issues. It is repetition on my part and on his.

What are the issues? They have been set out by no more august organisation than the European Commission, which produces regular communications. In September 2020 it told us there was an analysis of the effect of criminalising humanitarian organisations. I will jump to the back of the publication first to put it in perspective. In the policy recommendation section, it states that NGOs and individuals - whom my amendment tries to capture - in the EU providing humanitarian assistance have expressed growing concerns over recent years. Rescue operations at sea, those mandated by law, as well as support given to migrants on the move, be it at borders or within a territory of a member state, are reportedly carried out in the context of tension with national or local authorities, with rescuers and volunteers fearing undue administrative pressure and sanctions. I am reading from the Commission's communication to us. It points out that in a resolution on the issue, the European Parliament called on member states to transpose the humanitarian assistance exemption provided for in the facilitation directive, which the Government is trying to transpose through this Act. Recalling that the EU law does not intend to criminalise humanitarian assistance, the Commission states that it has taken stock of the situation since the evaluation of the facilitators package. In light of this, the Commission invites members that have not already done so to use the possibility provided for in Article 1.2 of the facilitation directive, which allows them to distinguish between activities carried out for the purpose of humanitarian assistance and activities that aim to facilitate irregular entry and transit. The communication goes on to raise other issues in respect of the chilling effect when countries pass legislation and do not make an exemption for humanitarian organisations or people acting on foot of humanitarian reasons.

The Irish Human Rights and Equality Commission says that the provision for humanitarian assistance as a defence rather than an exemption is not in accordance with international recommendations. In practice, it means that a person acting on behalf of a bona fide organisation or for humanitarian purposes will likely be charged with an offence. At that stage, it was under section 5. Thereafter it will be for that person to prove their innocence. Accordingly, this will likely have a chilling effect on people providing assistance to people seeking international protection. That is not me. That is the commission on foot of their analysis. If we look back at the EU's response to refugees - and Deputy Durkan was looking at this in terms of borders - the first major action by the EU was in respect of the plan for 2015-20 after what happened in Syria and other issues at the time. The emphasis was on the importance of the EU member states effectively tackling the offence by gathering and sharing information. We were not even doing that at the time.

Then the action plan became part of the European agenda on migration. They set out four pillars in that European agenda. Reducing the incentives and root causes for irregular immigration has never been tackled. Enhancing border controls through smarter borders has certainly been done as we build up to a 10,000 man and woman Frontex border.

11 o’clock

I will not call it an army — Deputy Martin Kenny might help me with the word — but there are to be 10,000 people in the organisation called Frontex. We are certainly working on building up the borders around Europe. The other pillars are "rethinking and better implementing the common European asylum policy; and improving opportunities for legal immigration". We have failed to do that as well. I could go on.

On the one hand, there is very good language about protecting asylum seekers, refugees and migrants and putting them at the heart of the justice policy and EU; on the other hand, the reality is that people are drowning in the English Channel, the Mediterranean and elsewhere. All the time, we are building up the body that will protect the borders. I am simply asking that we protect the humanitarian organisations and comply with our legal obligations in the EU to protect people who are acting, for humanitarian reasons, to help somebody. We are not doing that with this provision.

We are being forced into accepting legislation that is far from perfect. The amendment might be far from perfect but it will do less damage than what the legislation, with its chilling effect, will do. As the Minister of State rushes to write a note and talk about the fact that we are not catching smugglers, I fully understand the challenge - we have legislation from 21 years ago that was not suitable. We did not change it or work on it, and we did not collect any information. I will address the latter point through the other amendments.

Very basic recommendations from the Irish Human Rights and Equality Commission reminded that basic data and a focus on the rights of people who are being smuggled are absent. Specifically, it is a question of the humanitarian exemption. I understand France has addressed this, though not perfectly. That is also listed in the various documents. I am not sure what other countries have done. This was a role for the justice committee. That is where all this should have been teased out. The Minister of State's anxieties about not having legislation strong enough to catch the smugglers should all have been teased out. In the absence of that, I intend to press my amendment.

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