James Browne (Wexford, Fianna Fail) | Oireachtas source

I agree with Deputy Howlin. What we are looking at here is a net issue. As I have said, this matter has been carefully considered in the Seanad. We are carefully considering it in the Dáil today. This is the second time we have considered it, and if we have to come back again, we will consider it again. This is Committee Stage and the issue is being given detailed consideration. The argument that it is not being teased out or considered in detail does not stand up. The guillotine procedure has not been applied to this Bill at any Stage in the Seanad or Dáil. It is not a case of examining 120 sections and opposing one rather than another. It is very much a net issue.

According to the communication form the Commission: "In its Resolution on the issue, the European Parliament called on Member States ‘to transpose the humanitarian assistance exemption provided for in the Facilitation Directive'."Deputy Connolly referred to that. The communication states:

Recalling that EU law does not intend to criminalise humanitarian assistance, the Commission has taken stock of the situation since the evaluation of the Facilitators Package. In light of this, the Commission invites Member States 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 or transit, and allows for the exclusion of the former from criminalisation.

That is the point Deputy Connolly raised, and rightly so. However, we have done that. This is what we are doing here. We have made the exemption. In fact, 19 countries have not made any exemption. We are one of only seven countries to do so, and we have gone further than almost every other country in providing for such a broad exemption. The broad spectrum of the exemption will catch situations such as cases of family members or friends who might be trying to help someone. That is why we did not opt for a narrow definition. We have deliberately provided a broad and generally applicable definition.

The discretion in Article 1(2) of the facilitation directive to exclude humanitarian assistance from the scope of the offence has been taken up by only seven member states. We are one of those states. In many cases, where other states have taken up that exemption, it has been narrow in scope. I hear the Deputies' concerns, perhaps alluding to political prosecutions in other countries, particularly in Mediterranean countries. We have seen evidence of that. Thankfully, however, we do not have that situation in this country. We do not have a political prosecutorial system. We have an independent Office of the Director of Public Prosecutions, which is guided by a very strong code of ethics and guidelines that are regularly updated. The Illegal Immigrants (Trafficking) Act, which has been in place since 2000, covers similar circumstances, and we have seen no evidence of that legislation being misused in any way. That would only be used to bring a prosecution in the first place.

I provided the example of Libya earlier. If an NGO or a party was acting to provide humanitarian assistance, it would be best placed to give the evidence, but it would only need to give that evidence if the DPP decided to prosecute and the prosecution was able to meet the very high threshold, as I outlined earlier, of being able to get the prosecution across the line. The prosecution would need to prove the accused intentionally assisted someone to enter the State in breach of immigration law and the accused knew or had reasonable cause to believe that the entry was in breach of the law. That would have to be proven beyond reasonable doubt. That is a huge burden for the prosecution to meet. It is not that difficult, in most cases, for a defendant to be able to knock that back. We have seen in the way that burden is set out in current law that, to date, it has been almost impossible for prosecutions to end in convictions. Not only do we have an independent DPP, but we have a Judiciary we trust and which has proven itself again and again. We have a jury system that many countries do not have. Our prosecutors have a code of ethics and duties. Where they are aware of information that could exonerate a defendant, they are meant to bring it forward. It is not easy to secure a conviction in this country. It is certainly not easy to do it. It is impossible under the existing law and it will still be quite difficult under the new law.

The aim of this provision is to protect the people who are at risk of being smuggled. That is the priority. I do not accept that under this law, NGOs or anyone providing humanitarian assistance will be at any real risk of unjustified prosecution.

If we accept the amendments, we will end up in the same situation we are currently in, which is an impossible task for prosecutors. If it is a bar to prosecution for a person simply to say that he or she was acting for humanitarian reasons or for a humanitarian organisation, where is that decision made? Is it simply the case that a person raises it and is then not prosecuted? A person could possibly end up in the worse situation than this legislation where it ends up being teased out in a criminal court, where the prosecutors do not accept the person's assessment. The person would not have the defence of the basis of probabilities, and he or she would be into a full-square court case. In that situation, I believe the prosecutor would find it almost impossible to prove the case anyway. Such cases simply would not be brought against smugglers as soon as that was raised. That is my assessment of this.

We are not doing this lightly. This was seriously thought out before this legislation was even brought in. It has been teased out in Seanad Éireann. It has been teased out in this Chamber. We firmly believe that there is good reason for bringing in this law the way we are. We believe that we have met the European Parliament and European Commission's call here. Ireland is one of only seven countries bringing in any exemption at all, and 19 member states have none. Of the seven countries, Ireland has done this in a very broad generally applicable way. If we trust our Director of Public Prosecutions, our judges and our juries, anyone acting out of humanitarian reasons is not at real risk. If such a case arose, which I do not believe it will, I have no doubt that this matter would be reviewed very quickly. The Criminal Law (Human Trafficking) Act has been in existence since 2008 and has not given rise to an outturn of the feared risk that has been raised here.

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