Thursday, 7 February 2008
Criminal Law (Human Trafficking) Bill 2007: Report and Final Stages
I move amendment No. 1:
In page 4, line 2, to delete "person;" and substitute the following:
(d) exploitation for financial gain;".
This amendment is to ensure that when dealing with human trafficking, we cover all angles and, as I explained on Committee Stage, not only labour exploitation, sexual exploitation or exploitation consisting of the removal of one or more organs of a person. There are other occasions in which people are trafficked and I gave a number of examples on Committee Stage, including exploitation for financial gain. I cited the example of the case in England of a seven year old child, Victoria Climbie, who was trafficked from the Ivory Coast to Europe by her aunt for the purpose of benefit fraud. The aunt had promised Victoria's parents that she would give the little girl a better life and educational opportunities but in February 2000, she died in a hospital in England having suffered many months of horrific neglect, physical abuse and degrading treatment. She was only eight years of age. It was to become one of the worst cases of physical child abuse and exploitation ever documented in Britain, and probably beyond. Victoria's aunt and her partner received life sentences for her murder. That is an example of somebody being trafficked for financial gain.
In a recent case it was alleged that financial gain was behind the trafficking of children from Chad by a French NGO. That case is still being investigated but it is alleged that hundreds of children were being trafficked from Chad and Sudan — basically, from the Darfur region — to France supposedly for the purpose of adoption. Some 300 families in France had seemingly paid money up-front for these children.
This amendment tries to cover that type of eventuality. Although benefit fraud in itself is illegal and somebody could be prosecuted for that, the trafficking of a child or any human being for the purpose of financial gain should be covered by this legislation. It is a minor enough provision which, hopefully, would never be used as having such a law would discourage anybody from trafficking the likes of Victoria to our shores and exploiting them in such a way.
However, I live in the real world and understand that human traffickers have no regard to national or international laws. Therefore, the onus is on us as a society to end what is the slavery of the 21st century. Considering the number of people being trafficked throughout the world, how many of them are being trafficked not only for prostitution but for benefit fraud and some other financial gain? The estimate is that between 700,000 and 800,000 people are trafficked world-wide. I do not know the estimate for this country, if there is one. It is probably difficult to quantify unless people come forward.
There is a considerable amount of trafficking into Europe. Ireland is a member of the European Union and we obviously have similar levels to other countries. We should try to ensure any legislation we enact covers all the angles and that is why I tabled this amendment.
The purpose of this amendment is to extend the meaning of trafficking into any activity which could be described as exploitation as long as the exploitation is carried out for the purpose of financial gain. On Committee Stage, I indicated I was not disposed to extending the purposes for which a person could be trafficked beyond those established in the relevant international instruments on trafficking.
It is important for the purposes of international co-operation, extradition and agreement on what amounts to trafficking to stay within the confines of the meaning given to trafficking in the relevant international instruments. Indeed, the draft EU Council conclusions on trafficking in human beings unequivocally states that member states prepare and implement national and comprehensive action plans against trafficking in human beings adopting as a common definition the one existing in the Council Framework Decision on combatting trafficking in human beings. I see no valid reason Ireland should break ranks and go our own way on how we prepare our legislation on trafficking in human beings.
The reality of these offences is that a high degree of international co-operation will be necessary for their successful prosecution, investigation and detection. It is important that we stay within the international framework.
I do not understand why Deputy Ó Snodaigh has tabled the amendment. I am not convinced that this amendment will make any practical difference. A provision was included in the Illegal Immigrants (Trafficking) Act 2000, under which it was necessary to prove that a person was smuggled into Ireland for gain. This has made it difficult. The requirement to put in "for gain" has made it difficult to bring prosecutions under that legislation.
While I accept that it would be a departure from what we are expected to pass, we should always strive towards having the best possible legislation even though it may be ahead of other EU countries. EU laws and other international conventions are based on what can be achieved as a consensus between the countries. That would not prevent any country going beyond those laws and conventions, once the definitions include exactly what was agreed at European level. I have given two examples, but people who are even more averse to trafficking and people who are the victims of trafficking would be able to give other examples of trafficking, such as trafficking for welfare fraud or for other types of financial gain. These examples would not cover the position in which the seven year old English girl Victoria Climbie found herself.
I still believe that my amendment should be accepted. This Bill is long overdue but it is welcome. Given that we are tackling this properly, we should try to ensure that as many eventualities are covered for the future so that we do not end up in a situation where people evade the full rigours of the law. Child neglect is a way of prosecuting somebody, as is benefit fraud, but they do not cover the specifics of the trafficking offence. We can prosecute in a number of areas under different laws and I think we need to prosecute people for the offence of trafficking. Hopefully that is what will happen with this Bill if this amendment is accepted or if some other mechanism is found to cover the eventualities I mentioned.
I can look at what the Deputy suggested, but sexual and labour exploitation are comprehensively defined in this Bill and there can be no ambiguity about what they mean. It is important we have accurate definitions in a criminal statute.
I move amendment No. 2:
In page 4, between lines 34 and 35, to insert the following new section:
3.—The Minister shall promulgate a code of victim's rights in respect of victims of trafficking which shall address the following issues:
(a) protection of private life of victims;
(b) appropriate medical assistance to victims;
(c) secure accommodation;
(d) recovery and reflection period (minimum 30 days);
(e) temporary Residence permit (minimum 6 months);
(f) translation and interpretation facilities where necessary;
(g) access to counselling and information services, in particular, as regards
legal rights, in a language that can be understood;
(h) access to legal aid;
(i) right of access to education for children;
(j) right to access social welfare benefits as necessary;
(k) voluntary repatriation and return of victims;
(l) facilitating access to the asylum process;
(m) special protection measures for child victims;
(n) family reunification;
(o) right to work;
(p) right to access vocational training and education;
(q) compensation and facilitating legal redress against traffickers.
Most people who have taken time to inform themselves about this Bill welcome it as going a significant way to tackling the issue of trafficking. However, the same informed people also agree that the big defect in the Bill is an absence of the protection of victims' rights. There is not as much public knowledge about this as one might expect. The Minister took time out on Second Stage to set out very graphically the scale of human trafficking in today's global environment. In so far as statistics are available to the international organisations concerned, it is now claimed that human trafficking is the third most lucrative international criminal trade, after drugs and arms.
I was completely taken aback at the extent of the response to a recent television programme, drawing attention to this issue. People who never really thought about it did not appreciate that 800,000 people are being trafficked every year. Against that scale and background, it would be very naive to think that Ireland somehow escaped the attention of those who were involved in this lucrative, international criminal enterprise. We dealt with that on Second Stage, on Committee Stage and when we examined the Estimates of the Department and of the organisations working with people at the coalface of the trafficking problem in this jurisdiction.
The Minister has clearly made trafficking an offence, but he has made it plain that this Bill is purely a criminal law response and does not purport to go beyond that. We know that he speaks in an environment where we have not ratified the international instruments because of defects in the law as it stands. This Bill will advance us towards compliance, but it is not in itself sufficient. The major defect, identified by people who are concerned and knowledgeable in this area, is in the protection of victims. Unfortunately, the Minister has taken the position that that is not for this Bill and that he will address it to some extent in the immigration and residence Bill. We have consistently said that these are two entirely separate matters. The immigration and residence Bill is about a completely different phenomenon from that of trafficking. All the international instruments suggest that the care, protection, assistance and provision of services to victims ought to be in the trafficking Bill itself. The Minister has resisted that, which is a great pity.
I believe that this Bill will be undermined by the refusal to take on board the desirability of enshrining the protection of victims in the Bill. It is entirely unrealistic to expect victims to come forward to use the criminal law provisions if they do not have a measure of reasonable protection. That does not apply at the moment. We are mainly talking about young women who have been brutalised, who find themselves in an alien environment, who very frequently may not have good knowledge of the language and who are fearful of those who have got control of their lives. We expect them to come forward to make the criminal law provisions in this Bill effective. Unless we provide them with nurture and protection, it is less likely that they will come forward. That is the regrettable thing about the Minister's stance because otherwise, generally speaking, I support his Bill. I acknowledge that it is a big step forward, but I do not understand the almost ideological resistance in the Department to inserting in the Bill a charter for the protection of victims. I do not see why that is a big issue. The Minister will, in effect, say: "The Deputy now knows I have done this in the immigration Bill". In fact the Deputy does not quite know this because the Minister has dealt with the question of reflection and recovery in the immigration Bill, but that is all. In any event, the immigration Bill only refers to people from outside the EEA.
The main trafficking in Ireland is from within the European Union, from poorer countries including the new accession states. People from there are mainly those being trafficked into Ireland. It is more lucrative for those engaged in this criminal enterprise to go to Prague, Latvia or wherever and strike the deals that have come to light in recent times in terms of trafficking into London, other British cities and undoubtedly here.
The Minister will agree that the immigration Bill applies only to non-EEA nationals, but insist that the others are from EU member states and, as such, have the rights of EU citizens. That is true to a greater or lesser extent in terms of, for example, the labour laws. It is the case, however, in the anecdotal knowledge of every Member of this House, that the labour laws are not being particularly well enforced for some of the migrant labour here. There is a world of difference in the broad assertion that a young woman trafficked here from Lithuania is a citizen of the European Union, with attaching rights, and the actual circumstances of the person who has been trafficked. They need protection around them. They need to be proactively cared for if they are to heal, recover and be able to give evidence against those who trafficked them in the first instance.
The Minister has dealt with the recovery and reflection period and the question of temporary residence in the immigration Bill, but that is all. He has not done any of the other things that are listed in my amendment. I did not pluck these out of the sky, nor do I claim paternity of them. They are drawn from various international instruments that suggest best practice. Some of these are obvious and important, but they are not included either in this Bill or in the Immigration, Residence and Protection Bill. A citizen of Bulgaria or Romania does not have the right to work here, but how is a young woman who has been brutalised in this type of exploitation supposed to support herself while she is waiting for such a case to come to trial?
A number of issues are listed as regards medical and legal assistance, access to legal advice, accommodation and so on. They are all spelt out. The Department, while appearing to concede that we have been caught out and are not in line with international instruments and, therefore, should deal with the criminal law side of this issue, takes the position that otherwise Ireland is a civilised country and all of these matters can be addressed short of legislation. I have not seen anything tangible from the Minister that might indicate whether he intends to put administrative measures in place that will be resourced and provide the particular aspects of protection that I mention. Clearly, organisations working with people who have been trafficked want to see this in law. If the Minister has set his face against that, they want commitments from him on the Dáil record about what he proposes to do to ensure there is access to some administrative procedures that will provide these kind of services.
This is the big gap in the Bill. I genuinely have difficulty understanding the resistance to it. We are talking about a small number of people. The Minister refers to the number of people being trafficked here as 100 or more. Organisations working with them maintain it is a good deal more than that, and climbing. However, it is still a relatively small, finite number and I find it difficult to understand why we cannot offer these people protections under our law. It is plain that since the very poor economic areas of the European Union gained access to the Union, the phenomenon of young women either fleeing poverty to make a better life for themselves or being trafficked has been growing.
I instanced the case on Committee Stage which was published in a British Sunday newspaper recently involving a young woman from Lithuania, I believe, who only discovered when she arrived in London that she had been sold for €4,500 to an Albanian pimp. She found herself in circumstances where she was expected to have sex with men 15 or 17 times a day — in respect of which she got £10 a day. She had no knowledge when she left her home village that these were the circumstances in which she would find herself. Without the protective cloak that I am suggesting, it is very difficult to how she could get out of that situation and I ask the Minister, even at this 12th hour, to reconsider.
My amendment is similar to Deputy Rabbitte's, except for one minor change where I have inserted the phrase "which may be renewed". If a temporary residence period or the equivalent period of recovery and reflection is provided for in the Immigration, Residence and Protection Bill as promised, it was also pledged at the time that protections would be contained in this Bill. As Deputy Rabbitte has outlined, those protections involve a series of provisions to ensure not only that someone could remain within Ireland, in order to recover from whatever abuse and trauma he or she suffered as a victim of trafficking, but also a period of reflection to set down roots and perhaps co-operate with the Garda Síochána. The period is set at 45 days and is slightly more than what was being sought by some of the groups, which was a minimum of 30 days. In both amendments, we have sought a period of six months and for it then to be renewed. Considering how slowly the wheels of justice move in this State, I believe that is an appropriate period. It should be renewable to ensure that if a victim of trafficking were willing to take on the very dangerous course of exposing the trafficker and giving the evidence in court he or she would be protected when in our system and provided with the appropriate housing or shelter; medical, psychological and health care support; counselling, information on legal assistance, financial support; and the opportunity to try to recover and reintegrate into our society or their own country of origin. We should also ensure they have the right to work and the right to access to a vocational education.
A further amendment in my name deals with compensation or legal redress against traffickers. There is a series of measures that I do not think are covered in the Immigration, Residence and Protection Bill. What is contained in that Bill would be more appropriately included in this Bill and should be expanded upon greatly. We do not want a situation where someone uses the period to recover and reflect on whether they will co-operate with the Garda and may be held, as are some people who are totally innocent of any wrongdoing, in Cloverhill Prison pending deportation. What is the position for a person here? All the Bill states is that they will not be deported. That would mean they would be entitled to appropriate housing or shelter. We need to ensure that does not happen.
In Australia, for example, a young woman, a victim of trafficking, died in a detention centre in 2003, following which the Australian Government introduced an automatic humanitarian visa system to enable victims to remain on a temporary or a permanent basis depending on their individual circumstances. Given that the victims are children or young women, it is regrettable the Bill does not deal with what exactly a victim of trafficking is entitled to and would be granted by the State. It is estimated that 80% of the 800,000 people, or more, trafficked are women or children and 70% of them are being trafficked for sexual exploitation. Let us think of the trauma those women and children have experienced by the time they come to the attention of the State or succeed in escaping the clutches of the human traffickers or those who hold them in bondage in slavery. It would be appropriate that the amendments tabled by Deputy Rabbitte and me be taken on board and that the temporary residence permit which was renewable be taken on board. It should be renewable to ensure that, for example, in the middle of a court case the victim does not end up facing other trauma, such as a deportation. It should put be in writing that they know they are guaranteed the right to remain here while the court case is ongoing.
The other point that should be taken on board is that the provision of safe shelter or access to other service for victims of trafficking should not always be conditional on their willingness to take part in criminal proceedings. Often the victims of such trafficking are so traumatised and so afraid of the authorities and the trafficker and fear for their children or families at home that they will not be willing to engage in criminal proceedings against a trafficker. What does one do in that case? If somebody is so weak and so traumatised that they cannot go through that process, do we put them into the normal scheme of immigration and deport them? That is an eventuality that is not provided for in this legalistic text of the Immigration, Residence and Protection Bill. We are dealing with human beings here and considering what has happened to victims of trafficking, we need to be much more humane in our approach. That is what we were looking for. We have a Bill that has the support of the House but we are trying to ensure it is the best possible Bill and that we do not have to come back and add to it at a future date.
What we are talking about here is the fundamental issue in the Bill. We are trying to rely on victims to come forward to the Garda Síochána and then commit themselves to give evidence in potential prosecutions. My amendment proposes that a temporary residency permit for a period of six months would be provided to the victim of trafficking and that it could be renewed by the Minister for Justice, Equality and Law Reform. The reality is, and we articulated this on Committee Stage, that it would be virtually impossible for the Garda Síochána to take successful prosecutions unless proper protections are built into this legislation.
It is fundamentally important that we provide assistance and protection to these persons in terms of housing, medical support, interpretation and legal services. I tabled an amendment on Committee Stage specifically on the issue of legal services. When the Minister responds I know he will say this matter is being taken care of in the Immigration, Residence and Protection Bill. Deputy Rabbitte raised a fundamental point, namely, that the Immigration, Residence and Protection Bill specifically deals with non-EEA nationals.
If one looks through the list of amendments tabled by Deputy Rabbitte, many of these issues, even if there was provision for them in the Immigration, Residence and Protection Bill, which there is not, would exclude EEA nationals in regard to what are basic rights, if they continue to reside here and assist the Garda in taking successful prosecutions. Those rights are the protection of private life of victims, appropriate medical assistance for victims, secure accommodation, translation and interpretation services, counselling and information services, legal aid, voluntary repatriation, family reunification, special protection for child victims, the right of access to training and education and the issue of compensation and access to social welfare benefits. I put it to the Minister that if an EU citizen is residing here for less than two years, due to the habitual residency condition, he or she would not be eligible for social welfare benefits. There are other social welfare benefits that are dependent on making a PRSI contribution and I doubt if many victims would be paying PRSI. These individuals, who are citizens of the European Union, will be denied basic rights, not that any provision is being made for people outside the EU in regard to the specific issues in the Immigration, Residence and Protection Bill. What we are being given is a pig in a poke. We are told they will be given a reflection period and temporary residency but, other than that, we do not know with what they will be provided. It is of fundamental importance that specific provision is laid out for these individuals. To take, for example, the issues in regard to counselling, information services and medical assistance, will these be dependent on the HSE providing funds? If Irish people cannot get access to this assistance at present, how victims of trafficking will do so unless it is enshrined in legislation defies comprehension.
It is fundamentally important that we have successful convictions, which is what we all want — this is a key objective of every Member of the House, including the Minister and the Opposition. However, we will not have successful convictions unless proper provisions are made for the victims of trafficking. The last thing any victim should need to be concerned about is even a remote possibility of being deported from this country. While we can tease this issue out when the Immigration, Residence and Protection Bill comes before us, my interpretation of that Bill is that temporary residence beyond a period of 45 days will be dependent on those individuals assisting the Garda Síochána in attempting to take a prosecution. As I said on Second Stage of this trafficking Bill, this is a dangerous avenue to go down because it will be used by defendants as a means to pour cold water on the evidence of a victim. It will be suggested the only reason he or she is giving evidence is to ensure he or she is given residency in the State, temporary or otherwise.
It is critical that residency is not dependent on assisting the Garda with successful prosecutions. In the vast majority of cases, these individuals have been abused by the traffickers bringing them in — who, in many cases, are Irish citizens or other EU nationals, and who act as pimps — and by Irish citizens availing of the so-called services. There is an onus on us to ensure these individuals are given the proper protections, which should be enshrined in primary legislation or, at the least, secondary legislation. It is of fundamental importance that this happens.
On Committee Stage, the Minister said he would respond to us on this issue. He said he would, at a minimum, outline an administrative arrangement that would be put in place. I hope he will respond to us in that manner because, at the least, it is required that this be put in place, even as a temporary measure until the Immigration, Residence and Protection Bill is enacted and in force. This Bill will be enacted with 30 days of an Uachtarán signing the Act into force, which will be a positive development. However, there is not much point having the legislation in place without having the protections in place, if we are to ensure that people are prepared to come forward to give evidence, explain to the Garda exactly what is happening and ensure we get successful prosecutions.
When the Minister responds, I hope he will also deal with the issue of resources. Making a statement to the House that A, B and C will be done is worthless without the resources being put in place. I have provided an example with regard to the health service, and we spoke last night with the Minister's officials with regard to the treatment of child victims in the context of the immigration Bill and the health services. This is particularly pertinent given the number of children who have entered this jurisdiction and been placed under the protection of the HSE by officials of the Department of Justice, Equality and Law Reform only to literally evaporate into thin air.
This is not an acceptable situation, even if the Minister gives a solemn commitment to the House that basic health services will be provided to the victims of trafficking. The difficulty is that even if Professor Drumm of the HSE put this information on the record of the House, we could not believe the words coming out of his mouth given the commitments that have been made with regard to other services. It is fundamentally important that we get an indication of ring-fenced resources that will be made available. Firm commitments must be made on the protection and assistance that will be provided to victims in the interim period before the enactment of the Immigration, Residence and Protection Bill.
The Minister suggested the immigration Bill would provide the protections that are missing from this Bill so the lack of detail is very disappointing, as is the failure to deal with the fundamental issues listed by Deputy Rabbitte in regard to his amendment, to which I referred on Second Stage and Committee Stage. Unless specific provisions and commitments are made, and the necessary resources provided, we are all wasting our breath in bringing this Bill through the House. Without those protections, we know we will not have successful prosecutions and until we have successful prosecutions that are not only publicised in this jurisdiction but throughout the EU and further afield, this practice will continue.
We can debate how prevalent trafficking is in this jurisdiction. The reality is that it is happening on a daily basis in this State, to what extent we do not know. We want to eradicate it once and for all. The only way to do this is to ensure statutory protections and provisions are put in place with regard to the services provided to victims.
I am glad to have the opportunity to speak on this issue. I am glad we have enough time to make comprehensive contributions. One of the frustrations with Standing Orders is that it would be helpful to know what the Minister is going to say on this issue before we speak. When he does speak, time limits are imposed on us.
The disadvantage of this is that while we are talking, I suspect the Minister has more or less made up his mind on this issue. That said, it is important to put the arguments on the record.
I am glad to see Deputy O'Rourke in the House. When she was the Leader of the Seanad after two fairly explicit "Prime Time" programmes which exposed the darkness of human trafficking in Ireland, she was one of the politicians who promised legislation would be brought forward on behalf of the Government. We now have that legislation. It is a reflection of the goodwill on this side of the House in welcoming the legislation that there are only 20 amendments on Report Stage. That is an indication that the Minister has got much of this right. There are three broad areas for which we need to legislate: prosecution, prevention and protection of victims. As regards prosecution, we needed definition and tough sentencing to provide the Garda Síochána and the courts with the required ammunition to deal with traffickers. The Minister has done well and that is recognised across the board by people who have taken an interest in this legislation and have been lobbying for it.
We will come to prevention shortly when dealing with forthcoming amendments. We must target demand in a more effective way but I appreciate that we cannot deal entirely with the sex industry, including prostitution, in a concise piece of legislation such as this, which is specifically about human trafficking. We can move to protect victims, however, because there are three categories involved in this crime: traffickers, users who provide the market, and victims. This legislation should specifically target traffickers, which we do reasonably successfully, and victims. On Committee Stage, the Minister said the debate was about criminal law rather than the broader issues of support and service provision for victims. Deputy Naughten, however, made the correct link encouraging victims to come forward in order to facilitate prosecutions. Gardaí cannot secure convictions without evidence and without people having the courage to come forward to tell their stories.
Trafficking is organised by ruthless, well-resourced, bright people who make money from intimidation and exploitation. It is a world of fear for the victims involved because they are afraid of the consequences if they choose to speak out, and if they do not do as they are told they get beaten up. I could cite a number of examples of people of various ages who came to Ireland and were exploited and abused in the sex industry, but I do not think that would add to the debate.
This Bill tells the victims, traffickers and other European countries that this is Ireland's legislative response to human trafficking. We have dealt with certain issues very well but people will ask what we are doing for victims. The response appears to be that we will deal with them in the immigration and residency Bill. Much work has been done in the European Parliament to prevent human trafficking across the European Union but the MEPs concerned say the last thing we should be doing is blurring the barriers between illegal immigration and exploitation through human trafficking. Victims of human trafficking should be treated as victims of sexual violence and exploitation in the same way as we would deal with a young Irish girl if she was exploited and violently abused. Their nationality should be irrelevant because such people require the assistance of the State. They should get it by right, rather than including such measures in an immigration and residency Bill. As Deputy Rabbitte pointed out, many people are involved in human trafficking who have come here legally. They came here expecting something but get something very different and are subsequently afraid to speak out.
I welcome the fact the Minister has decided to legislate for temporary residency permits for victims of trafficking. We are required to do so anyway by the European Union but it is a big step forward to include that provision in the immigration and residency Bill. I think it is in the wrong place, however. If we are going to deal with the matter in immigration legislation, why not do so in the Bill before us? In that way the Bill would be all-encompassing in dealing with criminal law issues as well as the compassionate side by giving rights to victims. It would be better to do that rather than having to revert to this issue at a later date.
On Committee Stage, the Minister said he would examine ways in which he could deal with the interim period between the enactment of this Bill and the immigration and residency Bill. He said we should try to put some measure in place for that interim period. I do not understand why the Minister cannot accept Deputy Rabbitte's amendment. As it happens, I think the Labour and Sinn Féin amendments are slightly preferable to ours because they are more all-encompassing. However, I do not really care which amendment is accepted because I want the Minister to address the principle involved. I hope he realises this is not political point-scoring. There are no votes in this matter one way or the other; it is an effort to try to produce as comprehensive a human trafficking Bill as possible. I recognise that in this Bill it is difficult to deal with the demand side by including those using prostitutes because it would require a study in itself. It is not difficult, however, to protect victims either when they come forward or when they are rescued. It would be seen as a compassionate and just approach as well as the tough stance already contained in the Bill. Even though I suspect the Minister already has his answer prepared, I hope he will be influenced by what other speakers have said.
To take up one of Deputy Coveney's points, this is not about point-scoring, lest anyone thinks it is. On Second Stage I spoke at some length on this Bill, although I did not attend Committee Stage. I am pleased to see the legislation approaching its Final Stages because it is long overdue. The Minister and his Department have done well to bring it so far. It is hugely important to protect the victims of human trafficking. While all the strictures outlined in Deputy Rabbitte's amendment make for fine reading, perhaps it would be unduly prescriptive to include them such a Bill. We are losing track of a central point of the Bill, which is not legislation based on equals. Who can say that a victim is the same as a user or those who commit the crime of trafficking? It is a David and Goliath situation in that the victim has a completely subordinate role because she is untried and untested in a strange country, she does not know the language and she has arrived with false aspirations and has had her dreams shattered. She finds she must come forward to make a complaint to the Garda and tell everything but she cannot do so because she is in an inherently unfair and unjust position. To expect such a person to acquit herself in reportage to the Garda or to apply for various social welfare benefits, a work permit or education and training, as proposed by Deputy Rabbitte, or to believe a woman in these circumstances could put herself forward to gain justice, humanity and kindness from the system that appertains in Ireland and that would happen au naturel is completely erroneous.
I reiterate my special interest in this issue, as I did on Second Stage. I am one of the vice-presidents of Ruhama and I would prefer to declare that rather than have somebody make a story out of my contribution on this legislation. I am entirely committed to the measures the organisation has sought for many years. Ruhama is unheralded and unsung and it was often the subject of ribaldry because people did not understand what it was most genuinely doing. If the measures outlined in Deputy Rabbitte's amendment are thought to be unduly prescriptive to include in legislation, given Departments have an aversion to prescriptive legislation, would there be an opportunity for the Minister to include an omnibus recommendation in an administrative way, as proposed by Deputies Naughten and Coveney? Apart from the validity attaching to this proposal because it has been mentioned in the House, it would also need to be underpinned by an administrative statutory arrangement, whereby the victim would have appropriate access to many of the resources the State would provide normally to the victims of such a depravity.
The Leas-Cheann Comhairle, myself and others on the joint committee would become duly and properly excited if a young Irish girl or a group of Irish women were being so exploited and we would demand, as would everybody else, an immediate response. However, in the main, these young women are European citizens because they have travelled from some of the poorer countries, including the recent accession states. We are committed to ensuring such citizens who are allowed to access our country should be looked after in all aspects. As Deputy Rabbitte said, it took a long time for labour laws to catch up with what has been happening in the context of employment rights but they did. However, these able bodied members of the working community are being preyed upon. These young women find themselves defeated suffering from low morale in a strange country and unable to make demands because they do not have strong voices or the wherewithal in many aspects of their lives to put forward their case. I seek a commitment to the general thrust of what Deputy Rabbitte has put forward in his amendments.
As I explained in detail on Committee Stage, the Government has a comprehensive strategy to ensure Ireland will be in a position to ratify the Council of Europe Convention on Action against Trafficking in Human Beings. The legislation is an element of the strategy and is, therefore, not the entire strategy. That is an important context in which our discussion should take place. I welcome very much the contributions of Members on these amendments. The convention obliges state parties to provide for the protection of victims and the provision of services to them and the Government is committed to putting a strategy in place to address the different issues mentioned by Deputy Coveney, including prosecution, prevention and protection. The Bill is an important element of the strategy because it deals with the substantive offences being created and their prosecution.
Central to the policy underpinning this legislation is putting traffickers out of business and behind bars. We must be careful in the legislation not to do anything that would allow them to escape justice. We must always be careful in law about unintended consequences in statutory drafting. An example of how well meaning statutory provisions aimed at supporting victims of trafficking can cause problems was given in the observations of the Human Rights Commission on the general scheme of the original Bill. The commission, which is a statutory body, made a detailed submission. My Department does not always listen to the commission but its observations on the provision of protective legislative measures in this substantive criminal statute are worth bearing in mind. The commission stated:
The provision of explicit rights for victims in a prosecutorial statute may potentially be characterised as an inducement to give evidence, thus possibly undermining the case for the prosecution. Where certain rights and privileges are extended to victims conditional on co-operation with a police investigation and/or a prosecution, a plausible defence may be mounted to the effect that the victim has been incentivised to give evidence. This may, in turn, diminish the impact of such evidence.
Deputy Naughten rightly said what we want, on foot of this legislation, is successful convictions. The Supreme Court has made judgments on what is an "inducement". In the case of the Director of Public Prosecutions v. Gilligan, the court examined where evidence given by persons in the analogous position of being on a witness protection programme could be admitted. The court ruled such evidence was admissible but struck a note of caution regarding evidence from such persons. In the United States, where victims of trafficking avail of special visas permitting temporary residence while co-operating with police investigations, arguments have been mounted that the perpetrators have an improper incentive in the giving of evidence. We must be careful not to put on the face of this legislation anything that could be construed as an open inducement in the context of the prosecution of these offences. That consideration has weighed on me in the analysis of this issue.
Deputy Rabbitte found it incomprehensible that an element of protection was not written into the legislation. However, that is a fundamental legal consideration to which I must have regard in the drafting of legislation. It is clear great care must be taken when providing for residency rights of alleged victims of trafficking and the services provided to them while availing of those rights. That is why the question of residency is being addressed in the Immigration, Residence and Protection Bill 2008. Similar care must be taken when providing for the different services referred to in the amendments tabled by Deputies Rabbitte and Ó Snodaigh. I do not take issue with the tabling of the amendments because I understand the Deputies' motivation but the practical reality is that the form of their amendments would drive a coach and four through virtually the entire Statute Book, given the range of rights conferred in them. However, the tabling of the amendments in that form was useful because it throws into relief the protections that should and must be available to the victims of trafficking. Care will have to be taken when providing for these services. It is no accident that administrative provision can be made to comply with the Council of Europe convention but we have to provide the services because if we fail in that respect we will not be able to ratify the convention.
As I indicated on Committee Stage, the Government established a high level group to devise the national action plan on trafficking. The plan will be implemented by the relevant Departments and agencies, all of which are represented on the group at senior official level. Deputies will recall that I also announced the establishment of an anti-trafficking unit within my Department exclusively dedicated to co-ordinating and facilitating the national strategy to address human trafficking. A competition was held for the post of executive director of the unit and the successful candidate, Ms Marion Walsh, has been appointed. Ms Walsh has made it clear that she will work with Government and non-government agencies to develop and implement a comprehensive strategy for preventing trafficking, prosecuting traffickers and protecting victims. That is her mandate.
With regard to immigration issues, it was asserted on Committee Stage that the Bill would be useless if alleged victims could not be assured of a period of reflection and recovery. I agree that alleged victims should not have to await the enactment of the Immigration, Residence and Protection Bill 2008 to be assured of that Bill's reflection and recovery provisions so, having regard to the fact that the Bill has been published, I assure the House that administrative arrangements reflecting the relevant proposals in that Bill will be put in place to fill the gap between the coming into effect of the Criminal Law (Human Trafficking) Bill and the enactment of the Immigration, Residence and Protection Bill. These arrangements will allow a foreign national who is a suspected victim of trafficking to be afforded a period of recovery and reflection of 45 days and the possibility of obtaining a further period of temporary residence for six months, renewable as may be necessary to allow the person to assist the authorities in any investigation or prosecution arising. For the purpose of identifying a victim of trafficking, a member of the Garda Síochána shall provide a statement to the Minister indicating that reasonable grounds exist for suspecting the person to be a victim. A statement of those arrangements reflecting the provisions in the Immigration, Residence and Protection Bill will be brought into effect and made available following enactment of this Bill.
Deputy Rabbitte noted that the Immigration, Residence and Protection Bill does not apply to EU nationals but such people do not require any visa or permission to reside in this State. Residency has to be addressed as an issue for persons from outside the EU but legislating for a period of rest or reflection for an EU national would be contrary to our obligations on free movement within the EU. Apart from the question of residency, which will be addressed on an administrative basis pending the enactment of the immigration legislation, the services to which Deputies Naughten and Rabbitte referred must also be provided. The high level working group will have to work with the various Departments to determine the precise services that can be made available to victims of trafficking. Deputy Rabbitte correctly pointed out that the numbers involved are not that large and the relevant arrangements can be made by the Departments. However, in regard to the example of social welfare provision given by Deputy Naughten, Irish citizens who do not have stamps do not qualify for unemployment benefit or old-age pensions.
These questions can be examined in the context of the Social Welfare Acts. I accept the Deputy's point that the habitual residency qualification in the case of EU nationals may have to be examined in the context of a victim of trafficking. The high level group can work with the Departments on the measures required to ensure proper protection. We are committed to ratifying the Council of Europe convention, which obliges us to put this criminal legislation in place and to put in place prevention and protection strategies, so we are working through these issues.
I appreciate the concerns eloquently expressed by Deputies opposite but it is fair to ask that we are judged on the outcome of this holistic strategy which is intended to address all the elements of this issue.
The House will be aware I am an admirer of the Minister but I have come to the view that barristers should not be let near the Office of the Minister for Justice, Equality and Law Reform and teachers should not be Ministers for Education and Science. The Minister's stock in trade is the ability to argue any point on whichever side of the case he happens to stand. In this instance, his worthy civil servants have burrowed away since Committee Stage to come up with a new argument for resisting this amendment. Where else did they find their argument but in a comment by the Commissioner for Human Rights? They now think the law of unintended consequences may apply and that aspects of my amendment could be read as a positive inducement to undermine the law. One has only to give that argument to a Minister like Deputy Brian Lenihan and, by God, he will make the most of it. Of course, one could equally give him the comments by the commissioner which support my amendment and he would convince us that the amendment is a good idea.
I do not accept his main point, which was not adduced on Committee Stage because we have only discovered it since then. I cannot see how normalising the environment for a young person who has been exploited disgracefully could be seen as anything other than an incentive for co-operation in bringing a prosecution. Law enforcement can only be effective if the environment is normalised and if a legally protected recovery period is available. A young person brutalised in these circumstances needs a period of physical and psychological recovery. I do not believe the Immigration, Residence and Protection Bill is the place to provide that period, which should be provided for in the Bill before us. Notwithstanding this legislation, it remains the case that the victim can be jailed or deported. Will the Minister agree to give NGOs representation on the high level group?
The objective of this Bill is to put traffickers out of business. However, by using the arguments of the Human Rights Commission, the Supreme Court judgment in the Gilligan case and the law of unintended consequences, the Minister contradicted what he said in respect of the Immigration, Residence and Protection Bill. The initial 45 days may not be dependent on assisting the Garda. However, in the six-month period and the six months subsequent to it we are dependent on people assisting the Garda. I am sure the Minister will use a different argument when we deal with this matter in the context of the immigration legislation. What he said is a fallacy.
The Minister referred to a comprehensive strategy. However, we do not know the nature of that strategy and provision has not been made in respect of it. We are aware that provision will be made for temporary residency in the Immigration, Residence and Protection Bill. However, no such provision will be made in respect of protection. No one will assist the Garda or provide evidence unless they are given protection. Deputy Rabbitte's amendment makes provision in respect of protection. A commitment has not been given to the effect that the said provision will be made.
The Minister stated that the conditions relating to habitual residency will have to be considered in the context of the Social Welfare and Pensions Bill. I could provide numerous examples of matters in respect of which his Department is supposed to be tick-tacking with the Department of Social and Family Affairs but with regard to which nothing is happening. However, we will discuss that matter next week.
The Council of Europe Convention on Action against Trafficking in Human Beings will not, from a protection point of view, be complied with until the matters to which I refer have been addressed. Neither this Bill nor the Immigration, Residence and Protection Bill make statutory provision for these matters.
What is the timetable with regard to complying with the various elements of the Council of Europe Convention on Action against Trafficking in Human Beings? When will the Minister be in a position to inform the House that Ireland has fully complied with the Convention, including in the context of introducing protection measures?
I welcome the fact that we have not been presented with the entire strategy and that there is more to it. The difficulty with the strategy is that it is a bit here, a bit there and a bit everywhere. That is why we have continued to argue since Second Stage that protections for victims should be included in the Bill rather than elsewhere. It would be preferable if the latter were done because we would not be obliged to rehearse these arguments when we deal, at some future date, with the Immigration, Residence and Protection Bill. I do not understand why protections are not included.
EU Council Directive 2004/81/EC, which deals with some of these matters, was not signed by Ireland. The deadline for signing this directive passed on 6 August. The provisions therein might have dealt with some of our concerns, even though, as the Minister stated, they may have led to the creation of some inducements. As stated earlier, however, the provision of shelter for victims should not be conditional on their willingness to give evidence. It would not, therefore, be an inducement. Our amendments are not seeking to create inducements, they are designed to put in place protections to ensure that people rebuild their lives.
If, during the period of reflection an individual decides to pursue, by means of prosecution, the person or persons responsible for his or her circumstances or the abuse he or she suffered, such a development would be welcome. The State would obviously have easier access to someone who is in a safe shelter and being provided with counselling to allow him or her to deal with the enormity of what he or she would be taking on by going to court and detailing the abuse he or she suffered.
I urge the Minister to re-examine this matter. I also urge him, even at this late stage, to try to ensure that protections beyond those contained in the Immigration, Residence and Protection Bill are included in this legislation.
I recall debating this matter approximately one year ago with a British Conservative MEP who made the point that we could not possibly legislate for temporary residency permits for victims of trafficking because there would be a queue of people willing to give evidence on the basis that their residency applications would be fast-tracked. That argument is nonsensical and relates to the law of unintended consequences.
The Minister stated that, on one hand, he is willing to put in place administrative arrangements to ensure that people can obtain temporary residency but that, on the other, he cannot deal with the matter in law because people might give evidence on the basis of obtaining such residency. That is a complete contradiction. If the Minister is legislating in respect of this matter and putting in place temporary measures to ensure that it will happen, why is it not possible to make provision in respect of it in the Bill? If it is going to be dealt with in the Immigration, Residence and Protection Bill, why is it not possible to make provision in respect of it in the Bill before us? I do not understand why the matter cannot be dealt with in this legislation. If we deal with it now, the Bill will, in the context of human trafficking, be much more comprehensive.
The Immigration, Residence and Protection Bill deals with residence in the State of persons who are not Irish or EU nationals. Were we to make provision in respect of the matter under discussion in the Bill before us — this is altogether separate from the issue of inducements raised by the Human Rights Commission — we would be obliged to repeal and then re-enact it in the Immigration, Residence and Protection Bill. The latter is a comprehensive codifying measure that deals with all aspects of the right to residence in Ireland and repeals all the relevant legislation going back to 1935.
If I were to follow Deputy Coveney's advice, I would make provision in respect of the matter in question in this Bill and then be obliged to repeal that provision a few months hence when the Immigration, Residence and Protection Bill is enacted. The latter is the correct mechanism with which to deal with the matter because it deals with residency in the State.
To allay the concerns expressed by Deputy Rabbitte to the effect that persons might be under fear of deportation, I wish to state on the record of the House that I will, on an administrative basis, exercise my discretion as Minister in accordance with the proposed section in the Immigration, Residence and Protection Bill when the legislation before us comes into force. The issue of residency is, therefore, settled. We will have an opportunity to examine the precise provision in the context of the Immigration, Residence and Protection Bill to see whether further improvement can be made. The question of residency does not arise for EU nationals because they have a right to reside here.
I made it clear that the high level group will work on all the protection issues as a matter of urgency. The new director of the anti-trafficking unit is anxious to engage with the non-governmental organisations, NGOs, this month to discuss their concerns and discover how matters can be progressed. Deputy Rabbitte asked if I would consider appointing a representative from the non-governmental side to the high level working group. I will consider doing so. However, I would like the director of the anti-trafficking unit to meet the representatives of all the NGOs which do so much work in this area to identify ways in which immediate progress can be made.
In fairness to my officials, I should inform Deputy Rabbitte that they prepared a brief on the subject of inducement for my consideration before Committee Stage. His entertaining vignette about officials in the Department of Justice, Equality and Law Reform ransacking Human Rights Commission reports is not, therefore, accurate. I was briefed before Committee Stage and I neglected to advise the Deputy of this argument during the relevant debate. The Human Rights Commission stated that it is dangerous to put it on the face of a criminal statute. However, it did not indicate that it is dangerous to include it in an immigration Bill.
I have two brief points. There will be no statutory provision for protection in any legislation, aside from the issue of residency. It is not contained in this legislation or the immigration legislation. There will be no statutory provision whatever for victims of trafficking.
The Minister's administrative proposal does not comply with the law of unintended consequences because it is dependent on assisting the Garda. Amendment No. 18 in my name complies with the law of unintended consequences and I ask the Minister to reconsider it even at this late stage.
I welcome the commitments put on record by the Minister as they will be of some ease to organisations working at the coalface. I reiterate the point made by Deputy Naughten that we will have no statutory provisions with regard to victims protection, and after this debate I am still at a loss in understanding why the amendment is being resisted.
I am prepared to take on board Deputy O'Rourke's comments that it is true Departments — not least the Department of Justice, Equality and Law Reform — do not particularly want to be landed with an overly-prescriptive charter of victim protection, as is the case here. There are certain elements of such victim protection that are more important than others. Why it would not be enshrined in a Bill concerning trafficking is beyond me.
There is a world of difference between immigration and what we are discussing, cross-border international crime. Immigration is a different issue as we are debating the trafficking of human beings, although not necessarily of our nationality. They are mainly young girls being traversed across Europe into positions of exploitation, where pimps and international criminals are profiting from selling their services to users in this jurisdiction.
All we are saying is the people being trafficked should be provided with a caring environment after they are rescued from the clutches of these pimps. They should be allowed circumstances where they can psychologically and physically heal and recover from the experience. I find it very difficult to understand how that in any way abrogates the criminal law designs of the Bill.
We are agreed that the measure being introduced by the Minister is important for all the reasons we have addressed. Some of the commitments he made in reply are of some comfort to people interested in this debate outside of here. The major defect in this legislation is that it does not itself encompass victim protection measures for the small number of people who find themselves being disgracefully exploited in our jurisdiction.
I move amendment No. 4:
In page 5, line 3, after "child," to insert the following:
(c) supplies or avails of the services of the child which the child has been trafficked to provide, knowing or having reasonable grounds to believe that the child was trafficked,".
This relates to section 3 of the Bill, which provides for action against the trafficking of children in particular. I seek for the avoidance of doubt to include this amendment, which would criminalise the person who supplies or avails of the services which the child has been trafficked to provide, knowing or having reasonable grounds to believe the child was trafficked in the first place. For the avoidance of doubt, it is necessary to criminalise the user in those circumstances where the user has reasonable grounds to believe the person was trafficked.
The Minister drew our attention to the fact on Committee Stage that there is a law dealing with the issue of sexual exploitation of a child under 17. I am sure the Minister is well aware that in the definition section of the Bill, a child is defined as a person under the age of 18 years. That is different. The Minister's argument on Committee Stage was that it would deter the user co-operating in the implementation of the legislation or the prosecution or enforcement of the law. The user would be deterred if he or she believed there may be liability.
Is there a single example in Irish case law where prosecution depended on the user coming forward? Is it the expectation of the Minister that leaving it as it stands is likely to induce the user, in some circumstances, to come forward? I greatly doubt it.
The other objection of the Minister is that it would be very difficult to prove if this requirement was put into the Bill. I accept it would be difficult to prove in many cases but every case, as the Minister knows, is different. There may well be cases where it would be possible to prove the matter.
In any event, a question arises which I thought Deputy O'Rourke was going to touch on. With regard to our treatment of prostitution in this country, the act of prostitution does not create an offence on either side, although to solicit does. There is no penalty attached to the user in any set of circumstances. I am raising the relatively narrow area here of where the user has knowledge, or there are reasonable grounds to conclude the user had knowledge, that the person in question was trafficked.
When I referred the Minister to the definitions section, I drew his attention to the fact that a child is defined as a person under 18 years. We are discussing a person who trafficks a child for the purposes of exploitation. Exploitation is also defined in the Bill. Exploitation can be for labour or sex. The focus of this debate has been such that we have forgotten about labour exploitation. That is an added argument for my more elaborative amendment which ought therefore to be included.
The only difference between my amendments Nos. 4 and 15 is whether the person is a child or an adult. I do not wish to delay the House on the issue later. We ought to criminalise the user when a child has been trafficked to provide a service.
Deputy Coveney adverted to the wider debate on this subject but concluded that this statute is not the place for that debate. He is probably right and we have a great deal more work to do before we are ready to discuss that issue. People have presented arguments to me about similar legislation in Sweden which was enacted in 1999. The statistics show that there has been a serious diminution in trafficking and prostitution there as a result. Is it the male mindset that contributes to the view that we cannot discuss or deal effectively with this subject because no one has dealt with it since time immemorial and that if it could have been dealt with in a civilised way it would have been? Does the Minister dispute the submission that the legislation has been effective in Sweden where there is no significant trafficking problem and prostitution is less prevalent than it was? The purpose of my amendment is to avoid doubt and include the knowledge that the person has been trafficked.
I am speaking to my amendment No. 14 but I also wish to address Deputy Rabbitte's amendment No. 4. He has articulated well the apparent anomaly between the Minister's definitions in this legislation and those in other Acts. It makes sense to clarify this and to accept amendment No. 4 because it is important to deal with protection of children. It is appalling that 65 migrant children go missing from HSE accommodation annually, something we will debate at greater length on the immigration Bill. This amendment, however, is reasonable and adds clarity to the Bill and I hope the Minister will accept it.
My amendment No. 14 is similar to Deputy Rabbitte's amendment but it deals with adults and people who benefit from the services of an individual who has been trafficked. On Committee Stage the Minister said he was prepared to consider this issue before Report Stage. I look forward to his response to the argument put forward there. While the legislation is strong on the individuals trafficking persons, that is not so of those who avail of the services. In most cases the person providing the service is a woman. The person who solicits is guilty of a criminal offence but the user of the service is only liable for prosecution if the provider is a child. We must deal with demand. There will be no financial incentive for people to traffic individuals into, or abuse them in, the country if availing of the services is made illegal.
The Minister quoted the Council of Europe Convention in respect of a previous amendment. Article 19 of the Convention provides for offences relating to persons who use the services of the victims of trafficking. Such a provision in this Bill would be a strong deterrent and would act as a barrier to the proliferation of human trafficking into and through this jurisdiction. It will be difficult to make a successful prosecution but if that were to be the criterion for inclusion in primary legislation many of our Acts would be slim because there are many provisions, some of which the Minister has listed, under which there have been no successful prosecutions. That should not be the criterion. As a parliament we must put down a marker that this practice is illegal, that we are going to deal with it and ensure that the people who avail of such services will be prosecuted.
The Minister also said on Committee Stage that there was no evidence that criminalising the purchase of sex reduces demand that it only displaces it. Since the Swedes criminalised those who purchase sexual services there has been a dramatic decrease in trafficking. The new Swedish law has also sent out a message that purchasing sexual services is not socially acceptable, and that has affected demand.
There is a clear correlation between supply and demand in any market. If the demand dries up supply is redundant. Most societies regard drugs as harmful to individuals but prostitution is equally harmful and the daily work of non-governmental organisations shows that if we criminalise the activities of those who use the service it will have a direct effect on the availability of prostitutes.
Prostitution already is an underground activity in Ireland. One need only consider some of the reports that have appeared in newspapers on the enormous expansion of the prostitution industry, particularly in the past ten years. It has been effected through use of mobile telephones, the Internet, hotel rooms and there even has been an instance of a mobile brothel. Criminalising users would act as a deterrent and also would have an impact on the possible expansion of this practice. I do not agree that criminalisation simply would displace it or force it underground because it already operates underground. Very little prostitution is blatantly open to the public eye at present, apart from in a number of specific locations. However, it is of fundamental importance to lay down a clear marker on the issue of criminalising the use of the service.
I believe Fine Gael has tabled a fairly balanced amendment in this regard. Members now have the opportunity to deal with this issue and I urge the Minister to accept the amendment.
I will try to avoid repeating the comments of previous speakers except to state that I support amendments Nos. 4, 14 and 15. This pertains to using the law to target demand and to inform people that using or paying for the sexual services of a trafficked person is a crime. As legislators, Members should not rely on the moral conscience of the nation to deal with this issue. A statement in law should be made to the effect that it is a crime to pay for sex with someone who has been trafficked and is being exploited.
Any voluntary organisation that works with prostitutes such as Ruhama, which was mentioned earlier by Deputy O'Rourke, or the Sexual Violence Centre, Cork, formerly known as the Rape Crisis Centre, will confirm that increasing numbers of prostitutes in Ireland come from abroad and are becoming younger. For example, I have been told that the average age of a foreign prostitute in Germany is 17. The demand exists for young foreign women in Ireland and other European countries and the question arises as to how to deal with this problem. Wherever demand exists, the product, which in this case is meat in the form of human beings, will be provided. Whenever demand for a product exists, be it for drugs, people or arms, people will exploit it and make a great deal of money from it.
Consequently the demand side of the trade must be targeted, regardless of whether it is represented by a farmer, an accountant, a business man or even a politician. These amendments pertain to sexual services because employment law and labour law is available to deal with those who exploit others in the labour force in locations such as mushroom farms or restaurant kitchens. However, no law exists to deal with someone who avails of a person's sexual services. It is a crime for an employer to bring someone from Ukraine to work on a mushroom farm, pay them nothing and intimidate them into working day after day. However, it is not a crime to enter a brothel and knowingly pay for sex with a 17 year old or 19 year old. Essentially, this is what the law states at present.
While it is a crime to solicit, it is not a crime to take money or to pay money for sexual services. The amendments under discussion do not propose to introduce criminal legislation for everyone who uses the services of a prostitute, which is an issue to which Members must return. The amendments pertain specifically to trafficked people and circumstances when there is reason to assume a customer knows that he or she is using the services of a person who has been trafficked. As Deputy Naughten observed, sometimes it will be difficult to prove and at other times not. In the case of a 17 year old who cannot speak English, a reasonable assumption can be made that such a person has been brought to Ireland for certain reasons.
The Minister should accept these amendments, which pertain specifically to people who have been trafficked, rather than to the laws on the sex industry in general, which also must be debated. When one considers the increasing numbers of foreign girls — this issue primarily, although not exclusively, affects girls — in brothels and on the streets at present, this proposal would make an important statement to people that such activity is a crime and is not acceptable and is a legal, rather than a moral issue. Such a statement from this House would be highly positive.
First, I should have said in reply to Deputy Ó Snodaigh in respect of the previous amendments that the question of a person who is a non-EU national and who has been given a period of recovery and reflection in the State is not contingent on a prosecution taking place. I have read into the record of the House and the Immigration, Residence and Protection Bill states that the period of recovery and reflection is given for the purpose of assisting the investigation or prosecution of an offence. Under the arrangement I intend to put in place on the enactment of this legislation and under the Bill when it is enacted, it will be possible for a person to get rest and reflection for the purpose of assisting an investigation. For example, it will be possible to do so for assisting the Garda Síochána in getting leads that may not necessarily result in a prosecution. It is important to put this on the record of the House. Deputy Ó Snodaigh raised this issue under the last amendments and it also is relevant and material to the consideration of the amendments under discussion.
As for the amendments in hand, Members spoke on this issue at some length on Committee Stage. I have given consideration to criminalising the activity envisaged in the first part of the amendment tabled by Deputy Naughten, that is, using the sexual services of a trafficked person, as well as in Deputy Rabbitte's amendments, which have a similar purpose. This issue received serious consideration when the legislation was being prepared. On the surface, the amendments appear reasonable but on closer scrutiny problems arise. Whatever about creating an offence of having sex with a trafficked person, my concern is for the alleged victim and one must make a judgment on what is in his or her best interest.
The first problem with the proposed offence is that the prosecution would be obliged to prove the accused knew that the alleged victim had been trafficked and this would be almost impossible. It is very difficult to see as a matter of proof how one could establish an offence, not only of purchasing sex but of purchasing sex from a person whom one knows to be a victim. The establishment of such knowledge as a matter of proof would be extremely difficult. I appreciate Deputy Coveney's point that Members have a function to make headline statements and that putting the proposed measure on the Statute Book would constitute such a statement. While I appreciate the point of so doing, such a statement would be incapable of practical enforcement.
A further issue in this regard is that when a prosecution takes place, it is likely that the Garda still will be investigating the alleged criminal offence of trafficking. For example, Members should consider a case in which a victim is prepared to state that he or she told the person who purchased sex that he or she had been trafficked. While such a statement undoubtedly would be controverted, one would have a case. The book of evidence on this offence is far more easily compiled than that on the trafficker. There is every practical possibility that the case of the purchaser of sex would proceed before that of the trafficker. Any suggestion that a person had been prosecuted for knowingly having sex with a trafficked person could prejudice the case against the person accused of trafficking and make it more difficult to obtain the trafficking conviction.
The third issue, which I mentioned on Committee Stage, is that the user of the sexual services might be the best chance a victim has of escaping her ordeal. It might be that if she pointed out that she was being trafficked to the person purchasing sex from her, she might be helped by that person. It is unlikely he would help her if he knew he had committed an offence. These are practical considerations. In terms of legal policy, if one wants to provide for what is being suggested, one must criminalise the purchase of sex generally. Deputy Rabbitte made a fair point and called for a debate on this subject. It is worth debating.
Deputies Naughten and Rabbitte referred to the experience in Sweden. It is worth examining the very fine research document prepared by Drs. Eilís Ward and Gillian Wylie entitled, The Nature and Extent of Trafficking of Women into Ireland for the Purposes of Sexual Exploitation: 2000-2006. The authors state:
A report commissioned by the Norwegian government to examine the impact of differing approaches to the sex industry in Holland and Sweden concluded that in the case of Sweden [where the purchase of sex has been criminalised] the abolitionist approach to prostitution has reduced the number of women on the streets but may have had unintended consequences such as sending the industry further underground and thereby increasing women's vulnerability. In addition, enforcement of prohibition has proved difficult and created evidential challenges.
This is in the context of a general prohibition of the purchase of sex, in respect of which the evidential burden is far lighter than that in respect of the offence of having sex with a person known to have been trafficked. There are very substantial difficulties in this area and the criminalisation of the act of purchasing sex might not necessarily minimise sex trafficking.
In 1993, when the offence of publicly soliciting for the purpose of prostitution was reintroduced to the Statute Book, there were calls to decriminalise the activity. When the legislation became law, there was controversy over its effects on the lives and working conditions of prostitutes. In retrospect, had we listened to those calls for decriminalisation, it would have been disastrous for prostitutes and, more latterly, for trafficked women. We therefore need to be very careful in this area.
Much has been written about the success, or otherwise, of the Swedish law that criminalises the purchase of sex and decriminalises its sale. There are those who see it as the answer to the problem posed by prostitution but others take a more cautious approach. Irish law is quite close to the Swedish model without criminalising transactions carried out in private by consenting adults. It has been claimed that the number of street prostitutes in Sweden has halved since the law was changed and the Swedish Government has estimated that the number of prostitutes in Sweden has dropped from 2,500 to 1,500 since 1999. However, these figures have been disputed by many, including a social anthropologist who has studied Swedish prostitution over the past decade. The anthropologist states no one knows if there are fewer prostitutes. This is not surprising because the law can only serve to drive prostitution further underground. One former prostitute is quoted as saying that underground profiteers, pimps and traffickers flourish under the new laws and that prostitutes would naturally rather avoid such people.
The authorities in Sweden admit that trafficking has increased somewhat since 1999 but that the level is lower than in neighbouring countries. It is very difficult to obtain hard evidence in this area. Sweden's national rapporteur on trafficking has estimated that the number of prostitutes has more than doubled.
It is clear that prostitutes in Sweden must now operate more secretly and therefore feel more vulnerable. The purpose behind the law was to treat prostitutes as victims so it is ironic that the very persons the law seeks to protect do not want that law. It is clear that demand does not disappear because of the introduction of a criminal law. It is displaced and re-emerges on the Internet and mobile phones and in rented hotel rooms. It re-emerges in neighbouring countries and regions such as south-east Asia.
The Swedish experiment is interesting and worthy of consideration but it is far from clear that it has been effective. Its main advantage is that it reduces street prostitution, but, as Deputy Naughten pointed out, the development of mobile phone technology has had a great impact on the phenomenon of street prostitution.
I appreciate the Deputies' points but to create an offence of purchasing sex from a trafficked person would not lead to any successful prosecutions and might not necessarily help their victims.
The Minister has broadened the debate on the argument that if we are to address this issue, we must address the purchase of sex per se and not just focus on an aspect of the problem, which is what the amendments do. The amendments seek to make it a crime to pay for sex knowing that the person offering sex has been trafficked.
I have listened to the Minister and believe a number of people outside the House will be interested in reading his remarks. He may well be correct. I am not in any position to state the outcome of the experience in Sweden but have met somebody who works in this area in that country who advised me that the Swedish provision has been a considerable success and has diminished both trafficking and prostitution itself. I am not sure where this matter is referred to in the report of Drs. Eilís Ward and Gillian Wylie, as mentioned by the Minister, but I have read their strong recommendation that measures to protect the victim be enshrined in the legislation. I suppose the devil quotes scripture to his own advantage.
I accept that it is not possible, in theory, to contradict the Minister when he states the user might help the victim in a particular circumstance. It is possible but generally does not happen. The purpose of my amendment is to avoid doubt. If it were accepted, how would it undermine section 3? The rest of the section would still be in vogue if it were accepted. Its acceptance would address the question of demand, which we are not doing at all in the legislation as it stands. We seem to accept the view that, human nature being what it is, there is very little point in our seeking to address the question of demand. It is believed that doing so would be too complex and raise many issues and would only result in driving the phenomenon of prostitution underground and make matters more difficult for the women in the sex industry. A great many people would question the correctness of that belief.
I agree with Deputy Rabbitte that many people would argue against the point the Minister made in regard to the Swedish model. I accept that these amendments are restrictive and do not deal with the broader issue, which is something we should fully debate in this House on another occasion. I am not an expert in this area but it seems to me an incredible notion that a user would go into a brothel or bedroom, sit down on a corner of the bed, have an open and frank conversation with the victim of trafficking and then bring the latter to the local Garda station. That will not happen.
It is a question of putting down a clear marker that a person who avails of the services provided by a trafficked person is committing a criminal offence. I agree it will be difficult to secure convictions. However, it will also be difficult to convict a person of trafficking, especially in the absence of any statutory provision for protection, as I argued earlier. One could argue that the legislation in its entirety will be difficult to enforce, but that is not a valid argument. Just because something is difficult to enforce does not mean we should not outlaw it. There are many laws that are difficult to enforce. For example, it is impossible to enforce speeding laws in respect of motorists from outside this jurisdiction, but it is still against the law for a driver from Northern Ireland or the United Kingdom to exceed the speed limit in this State. Should we go through the Statute Book and delete all legislation that is not easily enforceable in all circumstances?
I ask the Minister to reconsider this proposal. It sets down a strong marker and is representative of the opinion of this House in regard to those persons who avail of the sexual services of a person who has been trafficked. It is important that we set down this marker.
I am opposed to the amendments at this stage. However, in view of the eloquence of the arguments put forward by Deputies Rabbitte and Naughten, I am willing to look at the narrow amendment proposed and to make that statement in the legislation. I remain doubtful as to whether there will be successful prosecutions. However, given the horrific character of the phenomenon of trafficking, I see no harm in providing for such an offence.
I would like time to reflect on the question of whether the inclusion of these proposals could mean a victim of trafficking is prejudiced in that a person availing of his or her services might be in a better position to offer assistance if he or she were not committing an offence. However, I am open to the amendments. It should be borne in mind that where sexual relations are with a person under the age of 17 years, that is in itself an offence. The proposed offence, therefore, would apply in respect of persons over the age of 17.
I welcome the Minister's comments although I am not sure what they mean in the context of where we are in the legislative process. Like the Minister, I cannot see what harm it does to include these provisions. To include them does not diminish the section, rather it sends out a strong signal.
I am reminded that John Mortimer is appearing in the Helix tonight. He deals with this issue in the latest instalment of his Rumpole of the Bailey series, where a young man is faced with an ASBO because his playing football on a quiet street is objected to by a posh middle-class lady, a psychotherapist, who lives and receives her clients there. It turns out, however, that it is not psychotherapy her clients are seeking. The Minister says there will be difficulty in proving the offence of using the sexual services of a person who has been trafficked. However, Deputy Naughten is absolutely right when he argues that it will be equally difficult to prove the offence of trafficking. Whatever about the concerns of the Human Rights Commission, I would have thought it helpful if one could rely on the reasonable expectation that, once recovered, the person abused might give testimony to the fact that he or she was trafficked. That seems to be a desirable situation. If it is good enough for Rumpole of the Bailey, it is good enough for me.
I am not sure what the Minister proposes to do.
I thank the Minister for his response. I am pleased to find that we do not spend all our time in this Chamber talking to a brick wall. I believe this is only the second time in my 11 years in this House that a principle such as this has been accepted. I accept the point made by the Minister, but Deputy Rabbitte has raised an important point. There seems to be an anomaly between the age threshold of 18 years in this legislation and that of 17 years in other legislation. I ask the Minister to review this in the context of the debate in the Seanad.
I move amendment No. 5:
In page 5, to delete lines 9 to 11 and substitute the following:
"(5) A person guilty of an offence under this section shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.".
My amendments Nos. 5, 8 to 10, inclusive, and 16 are in response to an amendment proposed by Deputy Rabbitte on Committee Stage. I mentioned then that there were two ways of expressing in legislation a conviction on indictment which attracts a maximum sentence of life imprisonment. I considered the wording then proposed by the Deputy as superior and I thank him for drawing my attention to this point. To effect the Deputy's intention requires five amendments, namely, amendments Nos. 5, 8 to 10, inclusive, and 16.
I welcome the Minister's amendments and remarks. It is true that there is a knock-on effect in accepting my proposal. I understand similar amendments are required to sections 4 and 5. I ask the Minister to indulge me in putting forward the case that my amendment No. 6 is more eloquent than his amendment No. 5. However, I am not prepared to go to the wire on that.
The point is that it is not sufficient to allow the law to stand such that a fine is considered adequate penalty for somebody guilty of trafficking. The Minister pointed out the implications where a corporate body is involved. My amendment No. 6 seeks to encompass this, and sufficient discretion is afforded to the court in the wording of the legislation. The original wording in the Bill would probably be unconstitutional because it could be construed as providing for a mandatory life term for all offences. Clearly, there would be difficulties with that. In any event, the Minister has met the point and whichever way he wishes to go is acceptable.
I move amendment No. 6:
In page 5, to delete lines 9 to 11 and substitute the following:
"(5) A person guilty of an offence under this section shall be liable upon conviction on indictment to imprisonment for life or a lesser term of imprisonment, or to such imprisonment and a fine, or, in the case of a body corporate, to a fine.".
Question, "That the words proposed to be deleted stand", put and declared carried.
I move amendment No. 7:
In page 5, between lines 11 and 12, to insert the following:
"(6) When sentencing, the Judge may also, where appropriate, issue an order mandating the payment of compensation to the victim.".
As drafted, the Bill allows the judge to do two things, namely, to fine or imprison somebody. We believe the judge should be empowered to mandate reparations to the victim in the form of direct compensation from his or her trafficker. This is important given the financial gain to the trafficker from abusing the victim. It is also important given that some victims may not continue to reside in this State long enough to pursue civil proceedings for compensation. If the trafficker is found guilty by the State under the current system, it would be open to the victims to pursue compensation in civil proceedings or some of the assets of the trafficker. If the victim leaves the jurisdiction, which would be his or her right, to return home or to set up a life somewhere else, he or she may not be here long enough to pursue civil proceedings or may not understand that he or she can take this initiative. There is also the cost of taking civil proceedings and everything that entails. It is reasonable that, where appropriate, the judge can mandate the payment of compensation by the trafficker.
Today's headlines mentioned a forced labour case that the Migrant Rights Centre, which should be congratulated, took to a rights commissioner. It ended up with the migrant worker being awarded €116,000. The Migrant Rights Centre said this case contained all the elements of human trafficking for forced labour. This man was brought to Ireland and made to work under extremely exploitative conditions. He was controlled by the employer and threatened to the extent that he had no option but to tolerate the exploitation. The case concerned a Dublin restaurant and I do not know why the restaurant or the restaurateur has not been named. The Pakistani man was forced to work in appalling conditions for five years, earning only €150 per week, of which €100 was deducted by the employer for his accommodation. He had no days off.
Siobhán O'Donoghue, director of the Migrant Rights Centre, said the victim was fortunate that he was still documented which meant that it could take the case and make it possible for him to seek justice. She called for better protection for people trafficked for forced labour in the up and coming Immigration, Residence and Protection Bill. Some of what we are dealing with here relates to labour exploitation.
In this case, the person had the pleasure, if that is the right word, of seeing the person, who abused him, denied him the right to earn a proper living and held his passport, prosecuted. He also gained compensation for the period of time he was held in such circumstances from the experience. Ms O'Donoghue also states that if the Minister is serious about combating trafficking of people, he needs to acknowledge that trafficking for forced labour is a reality in this country and offer real protections to those in these circumstance because anything less is shameful.
It is in that context that the amendment has been tabled. If people are so abused, the trauma will live with them forever. They may not be able to pursue a normal life thereafter and overcome the trauma to set up a home, have a family or return to some type of work. They would be at a disadvantage for the rest of their lives, with no hope of compensation. At least compensation would give them some way to rebuild their lives and give them the security they deserve having gone through such a trauma. I urge the Minister to accept this reasonable amendment.
Deputy Ó Snodaigh makes a valid point about compensation for victims. I understand that some provision must be made for it under some of the conventions we have signed up to, or are about to sign, and that some fund must be in place for the victims of human trafficking. I do not know the scale of that or what funds will be available.
I presume that if somebody is convicted of human trafficking and if he or she has substantial assets, the Criminal Assets Bureau will step in to pursue and recover his or her assets. Will a facility be put in place where that funding could be ring-fenced for the victims of human trafficking? I am sure that in some cases it will be impossible for victims to pursue the traffickers for compensation.
Deputy Ó Snodaigh's amendment seeks to give the court power to order the payment of compensation to the victims of trafficking, but such a general power already exists. Section 6 of the Criminal Justice Act 1993 deals with the power of the court to order the offender to pay compensation to an injured party. Under section 6, on conviction of a person for an offence, the court may make a compensation order requiring that person to pay compensation in respect of any personal injury or loss resulting from the offence "(or any other offence taken into consideration by the court in determining sentence) to any person" who has suffered such injury or loss. This can be in addition to the court dealing with the offender in any other way. The general power exists in the courts in the case of any offence, including the offences created by this legislation, to deal with an offender in the way the Deputy has advocated. I am satisfied the existing law addresses that issue and that there is no need for these amendments.
On the wider issue raised by Deputy Naughten, his question about the application of funds seized by the Criminal Assets Bureau should be directed to my colleague, the Minister for Finance.
Of course I would dearly love to have control over these funds, but they go to the Exchequer and I support the Government policy and the views of the Minister for Finance on this matter.
There is advice from the Attorney General in connection with the seizure of the assets of drug barons. People want the money to go to worthwhile programmes for drug addicts, but the advice of the Attorney General is that it must go the Exchequer.
That is correct. There is an option to establish a fund under the Council of Europe convention and I have no doubt that is an issue that the high level working group will examine.
I thank the Minister for his clarification and I hope this is the case. Whereas usually the judge deals with convictions, imprisonment and fines, the fine usually goes to the Exchequer while the victim often does not receive monetary compensation. The victim obviously has the satisfaction of seeing somebody convicted, but in many of these types of cases, monetary compensation could be an additional aspect to the conviction to show that the victim's needs are taken into account by the judge. I take the Minister's word that this is already covered and I will withdraw the amendment.
I move amendment No. 8:
In page 5, to delete lines 19 to 22 and substitute the following:
""(1) A person who trafficks a child for the purposes of the sexual exploitation of the child shall be guilty of an offence and shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.".
I move amendment No. 9:
In page 5, to delete lines 28 to 30 and substitute the following:
"shall be guilty of an offence and shall be liable upon conviction on indictment—
(i) to imprisonment for life or a lesser term, and
(ii) at the discretion of the court, to a fine.",
I move amendment No. 10:
In page 5, to delete lines 33 to 40 and substitute the following:
""(3) A person who causes another person to commit an offence under subsection (1) or (2) shall be guilty of an offence and shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of an offence and shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.".
I move amendment No. 11:
In page 6, line 36, after "person" to insert ", with or without their consent,".
I note the Minister's amendment No. 13 deals with the issue involved and I thank him in that regard. It brings about a strengthening of the Bill. It was an anomaly in the original drafting and it will help to ensure that we have successful prosecutions.
I explained on Committee Stage that a similar amendment from Deputy Naughten did not make sense as proposed, but it did raise an issue that I undertook to examine before Report Stage. The effect of his amendment would be that a person could consent to being coerced, threatened or deceived into being trafficked. There was a difficulty with that particular formula in terms of the international agreements.
However, the amendments on consent as raised by Deputy Rabbitte and Deputy Naughten on Committee Stage did draw my attention to a provision in the international instruments, under which a consent given to the exploitation that arose from trafficking did not negate the fact that the person was trafficked. It is arguable that this is implicit in the offence, but it is desirable to transpose it into our statute and to put it into the text of the Bill, especially since it is specifically provided for in the international instruments. That is what I am doing in amendment No. 13. I commend that amendment to the House and I thank the two Deputies for raising this issue.
I move amendment No. 13:
In page 7, between lines 16 and 17, to insert the following:
"(2) In proceedings for an offence under this section it shall not be a defence for the defendant to show that the person in respect of whom the offence was committed consented to the commission of any of the acts of which the offence consists.".
I move amendment No. 16:
In page 7, to delete lines 30 to 32, and substitute the following:
"(6) A person guilty of an offence under this section shall be liable upon conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.".
I move amendment No. 18:
In page 10, between lines 2 and 3, to insert the following:
"12.—(1) Subject to the subsequent provisions of this section, a person who is an alleged victim of an offence under section 3 or 5, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, shall be given leave to remain in the State by the immigration officer concerned.
(2) Subject to the subsequent provisions of this section, a person to whom leave to remain in the State is given under subsection (1) shall be entitled to remain in the State for a period of 6 months which may be renewed.
(3) The Minister shall give or cause to be given to a person referred to in subsection (2) a temporary residence certificate stating the name and containing a photograph of the person concerned, stating that, without prejudice to any other permission or leave granted to the person concerned to remain in the State, the person referred to in the temporary residence certificate shall not be removed from the State before the 6 month period has elapsed.
(4) An immigration officer may, by notice in writing, require the person referred to in subsection (2)—
(a) to reside or remain in particular districts or places in the State, or
(b) to report at specified intervals to an immigration officer or member of the Garda Síochána specified in the notice, and the person concerned shall comply with the requirement.".
I move amendment No. 19:
In page 10, between lines 2 and 3, to insert the following:
"12.—A person who is a victim of an offence under section 3 or 5, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, shall not be liable to prosecution for entry into the State or for their presence within the State where such entry and/or presence was caused by an offence under this Act.".
We discussed this amendment on Committee Stage. The idea is that we do not want to criminalise the victim of trafficking. In fact, with the proposed legislation on immigration, this compounds the problem I highlighted on Committee Stage. I gave the example of the woman in Sligo who was a victim of trafficking and who ended up being transported to prison in Mountjoy. She could have been liable to prosecution under the Immigration Acts for being illegally resident in the country and could subsequently have been deported from the country.
The Minister is now planning to get rid of deportation orders altogether in the new Bill. The individual can now be deported straight away instead of being imprisoned for being illegally resident here. That has made the situation even worse. Whatever about my argument on Committee Stage, the Minister has strengthened my argument with the draft that he has put forward for the immigration Bill. There is no flexibility in it once the person is resident in the country. If somebody does not have knowledge of the English language or even a basic comprehension of the Bill, it is very hard for that person to inform a garda that he or she has been trafficked and to come under the protection to which the Minister referred earlier. If the person is residing in the country and does not have proper papers, then that person can be automatically deported from this jurisdiction.
It is vital that people cannot be prosecuted for their presence in the country when they have been trafficked. Such a protection should be put into this Bill.
The purpose of my amendment is to ensure that a victim of an offence created by the Bill cannot be prosecuted for having entered the State or for carrying out the labour or sexual acts envisaged. The Minister objected to these amendments on Committee Stage on grounds of admissibility of evidence. We have sought to meet that objection, but the nub of the argument still applies. Reference has been made by a number of Deputies to Ruhama and the work it has done in this area and with women in prostitution. It is an admirable organisation which does very commendable work and it has been carefully following the enactment of this Bill. It remains absolutely persuaded that the victim should not be prosecuted for offences committed as a result of trafficking.
We talked earlier about the position on prosecution where an offence is not created on either side. However, as I recall, there are three offences in this area, namely, soliciting, maintaining a brothel and living off immoral earnings. Will the Minister say what the situation here would be if a woman was prosecuted for soliciting and it turned out she had been trafficked? Is that a defence that can be adduced in these circumstances? In the circumstances envisaged by Deputy Naughten, can we still have a situation where somebody can be deported as a result of being the victim of an offence created under this Bill?
The general idea is that the victim should not be liable to prosecution. He or she is the victim of gross exploitation, given the nature of this Bill. What we are seeking to ensure is that the victim should not end up being prosecuted for being in the State. Deputy Ó Snodaigh referred to the type of labour exploitation that goes on in this State and which is encompassed in this Bill. The definition of exploitation in this Bill does not just relate to sexual exploitation but also covers labour exploitation, including in domestic service. How quickly we have become accustomed to domestic servants in certain parts of the country. Whereas I have no objection to domestic servants being employed, it is appalling to hear that they are being exploited in some circumstances, required to work all the hours that God sends and being paid nothing near the national minimum wage. That is an area of exploitation as well. I certainly will find it very interesting to see whether there are any prosecutions under this Act, as proposed, in respect of the labour dimension. In a way, it will be a test of how easy it will be to prove trafficking. It may be that it is more equally shared here as between citizens of the European Union and those from outside the EEA area, but it is going on.
I was in a restaurant recently where I could not help but overhear the conversation at an adjacent table between three very well-heeled ladies as they complained about their domestic servants. I learned enough to know that I should contact the labour inspectorate to check out conditions. Such is the way that we have changed in this country. The argument being advanced to ensure the victim does not end up as the one being prosecuted is reasonable.
As regards these amendments, the Prosecution of Offences Act 1974 established the Office of the Director of Public Prosecutions, DPP. Under section 2 of that Act, the holder of the office is independent in the performance of his or her functions. That is a basic principle of our polity. The functions of the DPP include all those capable of being performed relating to criminal matters, which of course includes the prosecution of offences. The independence of the DPP is something we must cherish. I do not believe it is appropriate to interfere with that independence, discretion or control in the prosecution of offences.
I understand the reasoning behind the amendments. No person could defend the prosecution of victims of trafficking for offences concerned with the purpose for which they were trafficked. However, in this area we have to rely on the Director of Public Prosecutions and on the discretion that office can exercise in this matter, which it is entrusted to exercise. That, I suggest, is the way this matter should be dealt with.
In a sense the provision of section 124 of the immigration Bill is the substantive way in which the concern raised in these amendments has been addressed. The provision of a path to residency for the victim of trafficking and for recovery and reflection in a sense addresses the concerns which motivated this amendment because within the context of the residency legislation a lawful residence is now envisaged for the victim of trafficking. It would be unthinkable, then, that such a person could be prosecuted for entering the State illegally.
The problem is that if the victim when picked up by the Garda Síochána does not inform the garda that he or she is a victim of trafficking, there is no protection for him or her. The difficulty is that there has been a shift in the legislation proposed under the immigration Bill from the situation as it exists at present. At the moment if someone is to be removed from the State, first the Garda must apply to the Department for a deportation order. Then the notice of intention to deport is issued and a person has 14 days to respond before being deported. However, we got rid of deportation orders so that whole procedure is gone. The fact that someone is resident in the State without proper documentation means that he or she can be deported immediately.
Take a man or woman in a very vulnerable situation, possibly in relation to labour employment, where he or she does not have the language or does not trust authority. How will such a person admit to or explain to a member of the Garda Síochána that he or she has been trafficked. In the meantime, the fact that he or she is already resident here means that he or she can be legally deported forthwith under the Minister's proposals in the legislation. There is now a greater need for this protection to be built into this legislation than when it was being dealt with on Committee Stage.
That was the reason I posed the question to the Minister concerning what would happen in the case of a young woman prosecuted for soliciting — precisely the circumstances as envisaged by Deputy Naughten. In other words, fear and intimidation go hand in hand with trafficking, where a young woman, fearful for her life and in the control and grasp of a criminal directing traffic and living off her earnings, is prosecuted for soliciting. She may be in fear for her safety if she were to say, in effect "The reason I am doing it is that I left my home country in the belief that I was going to England or Ireland to work for a living and get a job, and I have ended up here through no fault of my own." In those circumstances she may, indeed, be prosecuted. Does it impinge on the freedom of the DPP to decide on what prosecution the office might or might not raise? The DPP's office would know nothing of the circumstances here. In other words, the local garda is prosecuting a young woman for soliciting and the case either proceeds or not on the basis of the file. There may be no reference in it to the fact that the young woman has been trafficked. I made reference at the outset to the fact that I got an unexpected number of e-mails and contacts from a recent television programme about this betraying, I think, that most law abiding people who live busy lives have not focused much on this issue. They are quite shocked at the extent to which the problem has grown in recent years in the globalised world in which we live and especially where there is free movement from the new accession states and, indeed, free movement from Romania and Bulgaria, even if there is not a right to work here. The problem is bigger than what we might think. In those circumstances what would be the situation?
Again, we are back to the discretion of the director. I want to correct one impression conveyed by Deputy Rabbitte. Of course, the file submitted by the Garda to the Director of Public Prosecutions would refer to trafficking if there was any suggestion of trafficking. The difficulty Deputies Rabbitte and Naughten have, and the difficulty we have with this whole phenomenon, is the unwillingness of the victim to come forward. The core provision is in section 124 of the Immigration, Residence and Protection Bill which provides for a period for recovery and reflection. The person who recommends that to the Minister is a member of the Garda Síochána. Clearly if there is the slightest suspicion of trafficking the Garda will investigate it and that will change the whole colour of any criminal proceeding that might be intended to be initiated against a victim.
The Minister has missed the point I am making. What I am talking about is something that goes nowhere near the Office of the Director of Public Prosecutions whatsoever. If an individual is residing in this State and does not have proper immigration papers he or she can be deported. There is no such thing as a deportation order that is gone. That person can be brought to Dublin Airport and immediately deported. Does the Minister expect that a very vulnerable woman, or man as the case may be, who has been systematically abused, in the case of sexual trafficking, in more ways than any of us can comprehend, will volunteer to a member of the Garda Síochána that he or she has been trafficked, while travelling from Galway, Sligo or wherever to Dublin Airport? That is what one is relying on in respect of what the Minister has just said. The difficulty is that he or she should not be liable to breaches of being actually present in the State. It is still a difficult issue to define and deal with but what is provided for in the legislation and being proposed in the next piece of legislation is that they do not have time to explain their case to any member because, once they are resident here, they can be deported forthwith.
This is to train the Garda Síochána in how to recognise the indicators of trafficking beyond what traffickers say. To date, 150 gardaí have received specific training in this area.
The Deputy will have to deal with that in the context of the Immigration, Residence and Protection Bill. Clearly there cannot be a provision in the Bill that exempts a person who is not lawfully in the State from deportation. I do not want to anticipate our discussion on the Immigration, Residence and Protection Bill.
I move amendment No. 20:
In page 10, between lines 2 and 3, to insert the following new section:
12.—A victim of an offence under this Act shall not be prosecuted for entry into or presence in the State or for carrying out the labour or sexual acts, insofar as such entry, presence or carrying out labour or sexual acts were a consequence of the trafficking of that person.