Dáil debates

Wednesday, 14 March 2012

Criminal Justice (Female Genital Mutilation) Bill 2011: Report and Final Stages

 

5:00 pm

Photo of Michael KittMichael Kitt (Galway East, Fianna Fail)
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Amendment No. 1 in the name of Deputy Ó Caoláin arises out of committee proceedings. Amendments Nos. 1 and 4 are cognate and will be discussed together.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I move amendment No. 1:

In page 4, to delete lines 5 to 7.

We have been through all of these before and I wish to revisit them as best I can but without labouring the situation. We divided the Committee on this amendment. I wish to again put the proposition to the Minister and the House that section 2(2)(d), lines 5 to 7, allow for what I would call a deficiency in the legislation to continue. It provides for women only under 18 years of age in terms of the absolute banning of female genital mutilation and allows a situation occur where women of 18 years and more are not deemed to come under the terms of this legislation.

It is wrong to say a person is not guilty of an offence under subsection (1) if the woman is 18 years of age or more. As I said on Committee Stage, women on attaining their 18th birthday are no less vulnerable to the pressures that would present when they are 17 years and 364 days old. It is a flaw in our approach and I am not at all taken by the counter-argument in support of retaining this statement that it could be carried out on women who would wish for cosmetic or other surgical reasons to embark on this act. It is a barbaric act and it is wrong and women without exception are being compelled because of forces within their family, community and culture.

This, of course, has become an area of concern to us because of the growing number of women and people from other cultures and countries coming to this country over the past short number of decades. I appeal to the Minister to again reflect on this because the same pressures and forces will apply post-18 years of age that would apply pre-18 years of age and that the young woman of whatever age will be no better able to resist those forces on attaining her 18th birthday than previously. We must give absolute support, guarantee and protection to women of all ages against this horrific and absolutely unnecessary procedure.

Photo of John HalliganJohn Halligan (Waterford, Independent)
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The Minister is probably aware that over a three year period the number of women affected by FGM in Ireland rose from 2,585 to a staggering 3,170 and the figure continues to increase. The UN international day of zero tolerance to female genital mutilation was two weeks ago and Amnesty International and its Irish section raised questions concerning the exemption of women over 18 years of age. Its legal counsel has said the section in question is problematic and on that basis, I ask the Minister to reconsider.

My problem is that the section states that a person is not guilty of an offence if the act concerned is done to a woman who is not less than 18 years of age and there is no resultant permanent bodily harm. Are we considering the potential psychological and emotional harm which apparently - I have spoken to members of the community - affects many women later in life even though there is no physical bodily harm?

Amnesty International, of which I am a member, has put much effort and resources into dealing with this problem worldwide. It has found that a high percentage of women over 18 years of age are still forced to have this procedure. They do not have free will even though they are over 18 years of age. A huge proportion of them suffer deep psychological scars in later years as a result of this procedure. Like Deputy Ó Caoláin, I ask the Minister to reconsider the age limit of 18 years of age.

6:00 pm

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I support the previous speakers in regard to this amendment. A loophole is being left open by not dealing with women over the age of 18 years. The reality is that the probability of somebody being prosecuted under this legislation is very slim. What is critically important is the message it sends.

I have spoken to some of the people who are very involved in this and we need to put in place strong legislation in Ireland and in other European jurisdictions. When families which are educated and know the issues involved return home, the level of family and peer pressure they face in their home country, or country of origin, is substantial. The best argument a family which is well educated and concerned about the health of the its female members can make is that if this practice is carried out, they could be prosecuted when they return to Ireland. People involved in fighting against FGM internationally argue that this is a very strong argument which people can put forward in their home community.

Other than the issue with which we will deal shortly in regard to girls under the age of 18 years, this issue of women over 18 years of age needs to be closed off. A clear message must be sent that no matter what the age of the woman involved is, prosecutions can take place in this jurisdiction.

That can be then used by families when they return to their country of origin in that they can state there is a strong probability they will be prosecuted when they return to Ireland because of the way the legislation there is constructed.

We do not envisage that female genital mutilation, FGM, will be physically practised in this jurisdiction. In all probability it will be practised in a third country. It is important we give the families who do not want this practice done to the female members of their family the tools to make that argument. One hopes that as a result of the education process that must take place the majority of such families who live in Ireland or within the European Union will be of that view when they return to their country of origin.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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As much of the extra-territorial issue will be dealt with in the following amendment, I will leave that aspect until then. I propose to consider together amendments Nos. 1 and 4, proposed by Deputy Ó Caoláin. These amendments relate to exemption from prosecution when a person performs an act on a woman who is aged over 18 years and there is no resultant permanent bodily harm. It was decided to use the broad WHO definition of what constitutes FGM, which includes Type 4. This category subsumes all other practices not included in Types 1, 2 and 3, and usually refers to pricking, piercing, incising, scraping and cauterisation. This decision was made to ensure that all forms of FGM are covered by the Bill.

It is not, however, the intention of the Bill to criminalise certain forms of genital piercing and cosmetic surgery for aesthetic purposes. Unless the exemption is included, piercing and cosmetic surgery would be counted as female genital mutilation because of the definition of acts of FGM we have already adopted in the Bill. This wording was chosen following extensive consultation with the offices of the Attorney General and the Director of Public Prosecutions. It acknowledges that adults have the freedom of choice over cosmetic and other procedures that do not violate their human rights. Following a further review of the matter recently and additional advice sought from the Attorney General, the exemption, as currently worded, stands.

Under this exemption no offence is committed if an act of FGM is committed against a woman of 18 years or more and where no permanent bodily harm is done. However, it should be borne in mind that if a woman undergoes FGM which does not result in permanent bodily harm and she has not consented to the procedure, the act can be prosecuted as assault under the Non-Fatal Offences against the Person Act 1997. This rationale also applies to the other instances of this exemption present in the Bill in section 3(2)(c) ,when a girl or woman has been removed from the State for the purpose of FGM and section 4(2)(d) when the acts are done outside the State. Therefore, I ask Deputies to reject Deputy Ó Caoláin's amendment.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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For me, this was a very important matter. I hold very strongly to the view that, for those women and families I have met from the newcomer communities who have found a home in our country in recent years, there is no age of maturity as we would understand it. That age was once 21 years and is now 18 years. It is when young women go through a passage to adulthood, something they can assert very strongly in Irish cultural terms. This is not replicated in these other cultures because it is not the reality. The attainment of the 18th birthday does not offer any, let alone sufficient, protection for the young woman or others of her family who wish to defend her against the pressures that have been applied in so many cases, compelling women to subject themselves to female genital mutilation.

By allowing subsection 2(d) to stand, we are undermining the essence and message of the Bill. An earlier speaker was right. This Bill will not necessarily, of itself, protect women in all cases but it certainly signals a weakness in that we do not apply the message to women on the attainment of their 18th birthdays. This is a significant failing. I regret the Minister did not take up my proposition on Committee Stage to come back with an amendment of his own. I note there are no amendments from the Minister in spite of the fact that we pressed ours well and, I believe, explained them well. They were not views of our own construction only but were reflective of people with whom we have engaged, a number of whom were present in the Visitors' Gallery on Committee Stage.

This is a very important matter. For me, it is one of the key elements in the Bill and I feel strongly enough about it to take the same course today as I have done previously. Again, I appeal to the Minister to recognise that other legislation in terms of criminal acts does not join with this legislation in giving a clear and unequivocal statement to all who may be considering involvement in this heinous practice. They need to be told very clearly that women of any age should not, and cannot, be subjected to FGM in this country, whether they are citizens of this country or resident in it long term.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I refer to the Minister's response in which he stated that in regard to actions against those aged more than 18 years, under legislation currently in place under the Non-Fatal Offences against the Person Act, a person could be charged with assault. Would this cover a situation where the procedure was carried out outside this jurisdiction? That has been part of the difficulty up to now. I realise we will deal with it in a much more substantive way in the next set of amendments. Here, however, what we want to do is ensure that no matter whether a person is aged over or under 18 years, wherever this vile procedure is carried out against her will, it is possible to secure a prosecution, followed, one hopes, by a conviction. The reason is that it sets into the Statute Book a very strong deterrent. The clear message that comes from the international community is to set down very clear strong deterrents in this regard and to leave in place no possible loophole. The concern is that if a potential loophole is left in place it could end up being exploited.

I accept what the Minister stated in regard to medical and cosmetic procedures and so forth, but it is important that what is applicable in respect of something that happens in our jurisdiction also applies if these procedures are carried out elsewhere and that persons can be prosecuted in this country.

Photo of John HalliganJohn Halligan (Waterford, Independent)
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I seriously doubt if there is much difference between the pressure applied to a young girl when she is aged 17 years and that applied when she is aged 18 or 19. Surely if we are introducing legislation it should protect all ages. I reiterate that all the statistics worldwide show that many women on the verge of becoming 18, just over that age, or even 19 years of age, are still being forced into having this procedure done. Significant analyses have been done by many organisations in the United Nations showing this.

The legislation is too vague. If by chance we find that FGM has been done to a woman aged more than 18 years, that she has been mutilated by force in this country or another but is present in this country, this legislation is so vague no prosecution could take place, based on my interpretation of the legislation. I ask the Minister to reconsider this carefully. We are speaking about vulnerable women between 17 and 19 years of age. There is not much difference between the pressure placed on girls of 17, 18 or 19 years of age.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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It is unfortunate that we are having a long debate on this aspect of the Bill. I strongly dispute what Deputy Ó Caoláin said. A strong message is coming from the Government and this House to anyone thinking of performing female genital mutilation, namely, that it is unacceptable and punishable by law, whether carried out here or where the victim is taken to a foreign jurisdiction to perform what Deputy Caoimhghín Ó Caoláin described as a heinous act. Let there be no dilution of that. We have laws in this country and the highest law officer in the land, the Attorney General, has reviewed both legal opinions provided by Amnesty International and is clear on the situation. We received legal advice that if, hypothetically, a woman was drugged and the police in another state intervened and prevented her from undergoing female genital mutilation, a person could be prosecuted for an attempt to carry out female genital mutilation under section 2 of the Bill or section 2 of the Non-Fatal Offences Against the Person Act 1997.

We have covered the situation where there is medical necessity for intervention. We cannot take this matter in isolation. Legal advice was received that it is insufficient to examine this section 2(2)(d) in isolation. Section 2(2)(a) provides that a person is not guilty of an offence if the person is a medical practitioner and the act is a surgical operation necessary for the protection of the woman's mental or physical health. Similarly, section 2(2)(b) provides that acts that would technically be female genital mutilation but are required for labour or delivery are not female genital mutilation. Section 2(2) is part of the context that should be considered for the interpretation of the paragraph. I cannot accept the amendment and I ask that it be withdrawn.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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There is a significant difference of opinion between the Minister and others. Sadly, I know from the debate on Committee Stage that such is the strength of numbers that there is no prospect of having the amendment successfully pressed as I did on Committee Stage. It is most regrettable. Time will show, too sadly, that there is a serious flaw in the legislation. I wish that otherwise would be the case but I regret that time will show this is a failure on the part of the drafters to recognise the fundamental flaw. I have recorded my belief and pressed it strongly on Committee Stage. I repeated my view today and the Minister's remarks do not change my opinion.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Photo of Joe O'ReillyJoe O'Reilly (Cavan-Monaghan, Fine Gael)
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Amendments Nos. 2, 3 and 5 are related and will be discussed together.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I move amendment No. 2:

In page 5, line 18, after "State" to insert the following:

"or has been issued with or in possession of a permit to reside within the State".

I apologise to the Minister for not being present during the debate on Committee Stage. Amendment No. 2 clarifies the definition of who might be prosecuted for carrying out or attempting to carry out an act of female genital mutilation in a place other than the State. The purpose of the amendment is to ensure people from outside the European Union, who have a legal right to reside in the State but may not be ordinarily resident within the State, come under the terms of the law. The Minister is using the standard format in Irish criminal law for applying the extraterritorial jurisdiction to specific offences that has been used in other statutes. During the debate on Committee Stage, the Minister said the intention of the amendment was to encompass any non-Irish national who has for permission to reside within the State. If so, it is already provided for within the current wording and the proposed text is unnecessary. If the Minister can clarify this is the case, I am happy to withdraw the amendment. My understanding is that it includes the additional test that the person must be ordinarily resident in the State. If someone has a valid permit to reside here but is not an EU national and is not ordinarily resident within the State, can that person be prosecuted under the legislation? If not, will the Minister accept the amendment?

I accept where the Minister is coming from in respect of current criminal law. The difficulty is that the Minister for Justice and Equality, Deputy Shatter, is introducing new types of residency and permits to reside here or work in this jurisdiction. The Minister for Justice and Equality is about to outline the detail on immigrant investors who can come into this jurisdiction. There is great potential to bring new investment and new capital and create new jobs in the economy and the Minister is correct on that point once proper checks and balances are in place. We all want to see that in place but we could have a situation where someone is between categories and does not meet the criteria of being ordinarily resident in the State yet has a valid permission to reside in the State, as the Minister said on Committee Stage. Can the Minister clarify whether the situation is as he stated on Committee Stage? When someone has a valid permission to reside in the State, can the person be prosecuted in this jurisdiction? If that is the case, I will withdraw amendment No. 2.

Amendment No. 5 is my attempt to address a loophole with regard to dual criminality. The concern is that the legislation as presently drafted could be circumvented by female genital mutilation being performed in a country where it is not a crime. There are many countries where the practice has not been defined as a crime. Some people were mischievous about this point on Committee Stage. The issue should be addressed by ratifying the Council of Europe convention on preventing and combating violence against women and domestic violence. Then, the issue of dual criminality and female genital mutilation would be removed from the legislation. I urge the Minister and the Government to ensure the convention is signed into law as a matter of emergency. The Minister is committed to ensuring it happens and I ask him to use his good offices to ensure it happens. If the convention is signed, the hurdle we must get over with regard to dual criminality can be taken out of the statute. I understand the difficulty arises because we have not ratified it. The Minister has stated that in order to conform with both our own Constitution and international law requirements we must have that threshold within the statute. Can he clarify the difference between this jurisdiction in the Republic and the position in Northern Ireland and throughout the United Kingdom where there is no dual criminality threshold to overcome? The extra-territorial limit we have here is not in place north of the Border. The Minister might clarify the reason that is the case.

This issue was raised in the Seanad and on Committee Stage and I am aware the Minister and his officials sought clarification from the Office of the Attorney General on foot of those concerns to determine if it possible to address the issue of dual criminality. However, in both the Seanad and on Committee Stage the Minister insisted that it is not possible to put in place an alternative mechanism because of the need to have the threshold of dual criminality in that it must be an offence in the country where female genital mutilation is performed. In light of that and accepting what the Minister said about his hands being tied regarding this matter I have tabled this amendment. It comes back to the point I made earlier about sending out a clear message on this issue, something the Minister has reiterated as being a core objective of the Government. We need to clarify the law on this issue.

Irish citizens will not be able to avoid coming under this particular procedure because under section 3 removing someone from the State could ensure that they can be prosecuted. However, the amendment ensures that where the act is committed in a country where female genital mutilation is not defined as being illegal, and where a person is avoiding a prosecution because of the dual criminality threshold, the Minister can, in those circumstances and under the legislation, ensure the matter is brought to the attention of the Minister for Justice and Equality, and we are talking about third country nationals in this case, who can then instigate deportation procedures. There is a clear set of procedures and a number of checks and balances in that regard in our immigration law but we do not want someone to get away scot free with having FGM performed purely on the basis that it is not a criminal offence in the country in which it is carried out. If we cannot prosecute them under the criminal law we must ensure that, at the very least, have them considered for deportation. It puts that additional threat in place. That would assist many families returning to their country of origin in that it may not be illegal in their country, and because of that they cannot be prosecuted under criminal law in Ireland, but as a result of the way the legislation has been drafted their immigration status could be withdrawn and they could be deported from Ireland. That would provide for a significant deterrent, although it is not enough. I would like to see actual prosecutions taking place but we cannot get away from the fact that a huge amount of pressure is being put on those indigenous communities, both in the country of origin and, sadly, in this jurisdiction on occasions, to bring girls back to their country of origin to have female genital mutilation performed.

As it stands the legislation before us, based on what the Minister said both on Committee Stage and in the Seanad about the dual criminality threshold remaining in place pending the signing of the Council of Europe convention, leaves a loophole in those particular countries. It is important to remember that in the countries in which the practice of female genital mutilation is not illegal there is even greater pressure on families to have this procedure performed on their daughters. We do not want those families to return to their countries of origin with the best intentions in the world where a substantial amount of peer pressure is put on them and, as a result, the procedure is performed on their daughters.

In terms of the people who are campaigning on this issue, there is a strong belief at international level that the threat of some sanction, preferably a prosecution under criminal law or at least the potential for the withdrawal of residency and deportation from this jurisdiction, will help families make a strong argument in their country of origin that this practice should not be carried out on their daughters.

We all want a clear message to be sent from this country that people who perform or facilitate the carrying out of female genital mutilation in any jurisdiction in the world are not welcome here, that we will use the letter of the law and every avenue open to us to prosecute them and that if they can get around the law because of this dual criminality loophole in the legislation, we will deal harshly with them and deport them from this jurisdiction. If the Minister is not prepared to accept the arguments put forward by other speakers, including Deputy Ó Caoláin, on the issue of dual criminality I ask him to seriously examine this alternative option which at least gives us some stick to hold over individuals who may try to carry out this practice.

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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I record my support for amendment No. 2 in Deputy Naughten's name and urge the Minister's favourable consideration of amendment No. 3.

The Minister indicated on Committee Stage that this is something that could be revisited in the context of the Government signing the Council of Europe Convention on Preventing and Combating Violence Against Women. Can he give us an indication of the status of that? I understand that was in draft form. Can we get an indication of the position on that and could the Minister reiterate for the Official Report what he said on Committee Stage if that was his intention and that of the Government? Are we looking at a hiatus period from the time of the passage of the legislation, which will happen altogether apart from the arguments Deputy Naughten, I and others may offer? I would like to get a sense of some certainty into the future on the issue of dual criminality, if the Minister is not prepared to remove it as my amendment seeks in terms of page 5, section 3(15)(c) where I propose the deletion of the words "and would constitute an offence in the place in which it is done". This dual criminality in regard to FGM is yet another significant flaw and get-out clause for some.

It is not suggested that a flood of people will head for the option of avoiding this country's laws after the enactment of this Bill, but there is clearly a loophole for those who are already intent on performing, facilitating or encouraging the practice of FGM. It is very important that we recognise the concerns of a number of organisations representative of newcomer people in our communities. I refer in particular to Akidwa. To leave this flaw within the Bill will allow for those whose intent is to avoid the law to circumvent it by opting for a country where it is not currently legally prohibited.

We went through the arguments at great length on Committee Stage. Deputy Naughten has spoken passionately about them today. I again urge the Minister to consider my proposal in amendment No. 3 favourably. I support amendment No. 2. I am not sure about amendment No. 5, but that is not the point. The issue is dual criminality, what the Minister is prepared to do about it and if he will reiterate his commitment on Committee Stage on the Council of Europe convention on preventing and combating violence against women.

Photo of Joe O'ReillyJoe O'Reilly (Cavan-Monaghan, Fine Gael)
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I welcome the opportunity to speak to these amendments. Their intent is to remove loopholes from the Bill which might allow an escape clause for any individuals concerned with this barbaric crime. It is an excellent intention and I welcome it.

I fully agree with the sentiments expressed by Deputy Naughten on the Government adopting the Council of Europe convention on domestic violence. It is necessary that we do so and as I support the view that we should do so. It is of great importance and is very urgent. I had the privilege of leading the Irish delegation to the Council of Europe and parliamentary assembly. Having been a member of it during its last term, I am aware there is huge regard for Ireland and our record on human rights in Europe. We have a five-star rating on human rights in the eyes of most criticisms.

To further consolidate and enhance that we should sign up to the convention as a matter of urgency. It is the right thing to do for Ireland within the Council of Europe and internationally, and is ethically, morally and, by any criteria, the right thing to do. I hope to hear the Minister, Deputy Reilly, give a commitment in the Chamber to sign up to the convention with great urgency.

I support the tenor of the amendments. Any loophole which would allow people to go to a country where FGM is not illegal and thus escape the law should be prevented and everything possible should be built into the Bill to copper-fasten the law. At a minimum we should be in a position to deport people involved in FGM. In an ideal world we should be able to go further than that and prosecute them. It is the view of the representatives of the communities involved from newcomer populations, as outlined by Deputy Ó Caoláin.

I am strongly of the view that we should remove any potential for duplicity, malpractice or escape hatches in that regard. I am also strongly of the view that we should, as a matter of absolute urgency and within the shortest possible period of time, sign up to the Council of Europe convention on domestic violence. That is a sine qua non for the Government in terms of our great record and standing within the Council of Europe. It is important to maintain and consolidate it, and continue to adhere to its noble objectives.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I accept the bona fides of the Members opposite in regard to trying to close off any possible loopholes. On a general note I have to make it clear that I operate under the best advice from the Attorney General. It is my intention to address amendments Nos. 2, 3 and 5 together.

Amendment No. 2 relates to the definition of who might be prosecuted for doing or attempting to do an act of FGM in a place other than the State. The current text of section 4(1)(c) is a standard format in Irish criminal law for applying extraterritorial jurisdiction to specific offences and is used in other statutes such as section 8(1)(c) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, section 4(1). In conjunction with section 4(4), it extends jurisdiction over any Irish citizen as well as any EU or non-EEA citizen for whom Ireland is the principal centre of residence.

The proposed amendment would seem to extend the scope of the extraterritorial offence provision to any non-EEA national who has been issued with a residence permission or who is in possession of one. The amendment does not specify whether the permission should be valid and its current format would extend jurisdiction over anyone who has ever been issued with a residence permission by the Minister for Justice and Equality, irrespective of whether that permission has been withdrawn, expired or the foreign national in question has ever availed of the permission to actually reside in the State. If Deputy Naughten's intention is to encompass any non-Irish national who currently has a valid permission to reside in the State, that is already provided for in the current wording and the proposed text is unnecessary. I do not, therefore, propose to accept this amendment.

Amendment No. 3 proposes to remove the requirement for dual criminality from the Bill. As the Deputies might be aware from previous Oireachtas debates on this Bill, this requirement has been included to conform to constitutional and international law requirements and was inserted into the Bill on the advice of the Office of the Attorney General. The issue has been considered in some detail by my officials and the Office of the Attorney General, and following a further review and additional advice sought from the Attorney General, the current provision on dual criminality stands.

A Deputy referred to the different laws in the UK. The UK FGM Act of 2003 does not include a dual criminality requirement because its Government is not bound by the requirements of a constitution that demands it, such as ours. The Bill does, however, provide for offences that relate to removing a girl or woman from the State for the purposes of doing FGM to her and this section mitigates the need for a dual criminality requirement.

Only in exceptional cases are extraterritorial offences in criminal law are provided for without a dual criminality requirement. Under international law only offences jus cogens, that is against the conscience of the world, such as piracy, war crimes and terrorist acts, carry universal jurisdiction. At the current time FGM, when carried out privately, is not an international crime but general principles of international law are developing all the time. Therefore, the view that FGM is not an international crime is open to change depending on development in the area.

In addition, Cosc, the national office for the prevention of domestic, sexual and gender based violence is currently examining the Council of Europe's convention on preventing and combating violence against women. Under terms of this convention the practice of FGM is condemned and it provides that there should not be a dual criminality requirement. The removal of dual criminality from female genital mutilation legislation could be revisited if and when the convention is ratified by Ireland. To ensure we would be in a position to prosecute a person who takes a girl to a country where female genital mutilation is legal, that is, a case which could not be prosecuted under section 4 because of the requirement of dual criminality, the Bill provides an innovative offence in section 3 - the offence of removal from the State of a girl for the purpose of female genital mutilation - to cover such conduct so that the offence provisions in sections 3 and 4, when read together, should cover all of the conduct which ought to be criminalised in relation to female genital mutilation. I do not, therefore, propose to accept this amendment.

Amendment No. 5, proposed by Deputy Naughten, would require the Minister for Justice and Equality to be informed that a person is not prosecuted of an offence of female genital mutilation because that offence has been committed outside the State in a jurisdiction where it is not criminally prohibited. Sub-paragraph (b) of the Deputy's amendment provides that, on receiving this information the Minister will initiate proceedings under section 3 of the Immigration Act 1999 against any such person who is not an Irish citizen. If I understand the amendment correctly, this is an attempt to circumvent the dual criminality requirement by attaching some sort of sanction in cases where this requirement might prevent prosecution. However, this type of provision would go against the principle of legality, that is, that someone should not be punished for an offence which was not an offence in the jurisdiction in which it took place. Therefore, I cannot support the amendment and I urge the Deputies not to support it either.

Photo of Joe CostelloJoe Costello (Dublin Central, Labour)
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I welcome the opportunity to say a few words on these amendments. I accept the Minister's statement that he taken the advice of the Attorney General, who indicates these amendments are unnecessary. Amendment No. 2 is regarded as too wide in its reference to residence within the State. It is very wide indeed and perhaps could be more tailored in regard to permits having been granted by the State.

I accept the broad thrust of what the Minister said. He has taken the Attorney General's advice on this matter, which is that the wording on criminal matters of this nature is standard and that there is, therefore, no loophole.

This Bill, which will soon be passed, is very important. The Minister and I recall the first occasion on which legislation on female genital mutilation was introduced in this House. It was introduced by former Deputy Liz McManus in 2000. It has taken from then until 2012 to have legislation on this matter placed on the Statute Book. It is very disappointing for this House that legislation on a matter whose importance was recognised in 2000 was not allowed to proceed until now. The legislation is so important because it deals with the very large number of people in new communities who are subject to what is now about to be declared a criminal offence. This House must look into its conscience every now and again to determine whether it is prioritising issues that need to be prioritised in areas of this nature. I would hate to believe they are not being regarded as urgent because they concern new communities, the diaspora from other countries, particularly those in Africa.

It has taken some time to get this legislation passed. I pay tribute to some of the very courageous people who have been to the fore in this regard. AkiDwA has been mentioned. Amnesty International has done tremendous work. Nobody has done more work than a young lady called Ifrah Ahmed, whom I believe is in the Visitors Gallery. She is a Somalian girl who was subjected to female genital mutilation. She probably would not have been able to keep working on the issue without the support of Dr. Shaheed, who offered an umbrella of protection from what would at times be considered a quite serious attack on the bona fides of those involved. Ms Ahmed established United Youth of Ireland. It includes young people from various African countries and has done considerable work on raising awareness regarding female genital mutilation and how it comprises an assault on women and undermines their rights. At last the issue, which affects so many living in Ireland who are from countries in Africa, has been brought to the fore. We are taking responsibility for having it criminalised.

As Minister of State with responsible for trade and development, particularly development, I believe this issue is extremely important because all the work of Irish Aid is underpinned by the principles of the UN charter on human rights. When we speak to people in our various programme countries about good governance, our first point is that human rights underpin our business in regard to partnerships with them. If we do not put our own house in order first, it will be very difficult for us to expect others to do so.

There are many millions of people in countries in Africa, particularly Somalia and Nigeria, that practice female genital mutilation on a widespread basis. In the past, we have not been in a position to say this is an abuse of human rights. Female genital mutilation has been defended on all sorts of grounds, including cultural and religious grounds. The practice is simply an assault on the integrity and humanity of young women. This is the point we must assert in our legislation. Having done so, we can make it part and parcel of our human rights agenda as we engage with other countries.

I am delighted the Minister for Health has brought this legislation to the Dáil and that it is about to be passed this evening. I thank the Acting Chairman, Deputy Wall, for indulging me and allowing me to wander slightly from the amendments.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I am sure the Acting Chairman will allow me equal flexibility.

Let me return to the amendments that I tabled. I thank the Minister for his clarification on amendment No. 2 in respect of permission to reside in the State. When one is in opposition, one does not have the same resources as Members on the Government side. It is not as easy to word amendments perfectly on this side. We do not have the services of the parliamentary draftsman available. I am sure the Minister of State, Deputy Costello, has had plenty of experience of this over the years.

I will turn to amendment No. 5. My intention is as was outlined. I accept the point the Minister made on dual criminality. I do not necessarily agree with it but I see where he is coming from. In fairness to him, he has reviewed this on a number of occasions. However, I am providing him with an opportunity to put a safety net in place. There is far greater flexibility to deal with this issue in regard to our immigration law. Rather than considering it in isolation as a matter of criminal law, we have an avenue allowing us to put the safety net in place. Consistently, people are saying girls are being brought from Ireland back to-----

Photo of Jack WallJack Wall (Kildare South, Labour)
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The Deputy has a minute remaining but there are other Deputies who wish to contribute. I will give the Deputy a chance to wrap up at the end.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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Girls living in Ireland are being brought to their countries of origin to have female genital mutilation performed. Immense pressure is put on families by their overseas connections, particularly those which come from areas where female genital mutilation, FGM, is practised. Sadly, quite a number of these countries are the ones where it is not illegal. It is of the utmost importance that we put this safety net in place so that a clear message goes out that if it is the case that we cannot prosecute a perpetrator purely because of a loophole created by an international convention, then we will consider deporting him or her from this country. A heavy hand should be used to put out the clear message that Ireland will not, under any circumstances, tolerate this practice being performed on any of its residents, no matter their age or background.

Photo of Billy KelleherBilly Kelleher (Cork North Central, Fianna Fail)
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This issue was raised on Committee Stage. There is obviously a legal argument being brought forward by the Minister using the Attorney General's advice. It is one matter to put a provision into statute. The other matter is the symbolic sending of a message. We must be very clear with this legislation to send out the particular message in the event of people carrying out FGM abroad that they would be automatically debarred from re-entering the country and lose an entitlement to a work or residency permit.

While the legislation is welcome, I am concerned when we talk of criminality, we forget there are victims in FGM. We must say to these victims they should feel in no way that they had been involved in anything other than they are victims. A strong signal should be sent out to residents from abroad who have suffered FGM and who may not be familiar with our culture or our medical supports, that they are victims and supports are available to them.

While education and supports from voluntary organisations which support our migrant community are in place against FGM, there must also be a strong emphasis through GPs based in areas where there may be clusters of victims of FGM. I am concerned some of the victims may feel stigmatised by us describing it as a criminal act, feeling they were in some way involved in a crime when they were not. The last thing we need is for young girls who have difficulties with menstruation or intercourse feeling they are incapable of getting assistance because of the crime perpetrated on them.

We must say to Irish residents who go to other states to perpetrate this crime that while the legislation cannot deal with them, it could debar them from re-entry or militate against their access to a work or residency permit. Will the Minister bring some clarity to the issue?

Photo of Caoimhghín Ó CaoláinCaoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)
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It is important we make a clear statement of intent to sign the Council of Europe convention on FGM and the record shows that this is the Minister's and the Government's intention. Signing it would deal with the whole issue of dual criminality and leave the situation with certainty in the future. Will the Minister indicate if it is the Government's intention to ratify the convention? When does he expect it will be concluded?

I must hand over to my colleague, Deputy Colreavy, for the remaining amendments as I have another meeting to address on another not too dissimilar issue of mutilation, namely symphysiotomy, a practice that was carried out years ago in hospitals here which we will debate tomorrow. Before I withdraw from the Chamber, I want to record my welcome and support for the Bill's passage. While I have endeavoured to improve and strengthen it, I acknowledge we will not oppose its passage. We support the passage of this welcome and long overdue legislation. Well done that it is at this point. I hope it will cover all areas we want without exception. I hope my and other Members' concerns will prove groundless over time.

I apologise for leaving but my colleague will advise me if the Minister was able to shed any further light on the ratification of the convention.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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The Health Service Executive has already engaged in significant steps to raise awareness and train health and social care professionals in this area by progressing the health-related objectives of the national action plan against FGM over the past several years. Its latest initiative in this field is the introduction of a national maternity health care record this year. This new form will be used for all women booking in for maternity care and includes, for the first time at national level, FGM as a risk factor for obstetric care.

Members want the law to send a loud message to people who use the duality loophole. We will be in discussions with the Minister for Justice and Equality, Deputy Shatter, around immigration law. That is the appropriate area where this loophole can be covered off. Cosc is also examining this area and I cannot pre-empt what it will recommend.

Under the terms of the convention, the practice of FGM is condemned and it provides there should not be a dual criminality requirement. The removal of dual criminality in FGM legislation could be revisited if and when Ireland ratifies the convention. I am not in a position to inform Deputies when that will be, however. I hope Members will accept we are acting under the best legal advice. We want the strong message to go out that this act of violence against women is utterly unacceptable in this country and we will protect all our citizens and residents to the best of our ability both here and abroad. There can be no doubt as to our commitment to that.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I thank the Minister for his response. In fairness, he is trying to meet me halfway on my amendment. I take on board his point about immigration law being the appropriate place for such a provision to be introduced. The difficulty is that I have heard that so many times in the past, namely where another Bill is more appropriate for a particular provision. There have been three separate drafts of the immigration legislation but it still has not been enacted.

Will the Minister seriously consider taking the subsection of my amendment so the legislation will at least say where someone is not prosecuted for FGM that the Minister for Justice and Equality will be informed of it and will be allowed to take his own actions appropriate to that under immigration law?

My difficulty with not inserting subsection (6)(a) in the Bill is that someone might not be prosecuted purely on the basis of the dual criminality issue and the incident might not be brought to the attention of the appropriate immigration authorities. By including the provision in the legislation, the Minister for Justice and Equality can be informed, but the final decision on how to handle the matter remains with the Minister. The information could facilitate the Minister in making a decision under immigration law on whether to consider a deportation. Inserting this provision would send out a clear message of intent and strengthen, not water down, the Bill. Inserting the subsection would not tie the hands of the Minister for Health or the Minister for Justice and Equality.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I am advised by my advisers and the Attorney General that is not the case. I regret that I cannot accept the amendment.

Amendment, by leave, withdrawn.

Amendments Nos. 3 and 4 not moved.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I move amendment No. 5:

In page 6, between lines 6 and 7, to insert the following:

"(6) (a) Where a person is not prosecuted under subsection (1) solely by virtue of the fact that it would not constitute an offence in the place in which it was done, then the Minister for Justice shall be informed of this fact.

(b) On receiving such information under paragraph (a) the Minister for Justice shall, where the person is not a citizen of Ireland or a European Union citizen as defined by Council Directive 2004/38/EC, shall immediately initiate proceedings under section 3 of the Immigration Act 1999.".

Amendment put and declared lost.

Photo of Michael ColreavyMichael Colreavy (Sligo-North Leitrim, Sinn Fein)
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I move amendment No. 6:

In page 6, between lines 12 and 13, to insert the following:

"6.--A person shall be guilty of an offence if the person aids, abets or incites a girl or woman to do to herself an act of female genital mutilation.".

We urge the inclusion of this amendment. It may be difficult to prove such an offence, but the provision's inclusion would send out a strong message to the effect that female genital mutilation, FGM, and efforts to circumvent the law cannot be tolerated. This issue is concerned with the disempowerment of girls and women. Often, such is the power exercised over them that they can be coerced into carrying out this act on themselves. Our amendment would strengthen the Bill in this regard.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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The amendment relates to the exemption from prosecution under the Bill for a girl or woman who self-mutilates. I am pleased to clarify that it is already the case that a person who aids and abets such a girl or woman to engage in FGM on herself can be tried for an offence under the general criminal law. This is because the exemption would only apply to the girl or woman herself and would not apply to create an exception for any person who aids, abets or incites her to the act.

The offences of aiding, abetting, counselling and procuring the commission of FGM are already provided for in the general criminal law acts on the grounds that a person is liable to be tried and punished where she or he aids, abets, counsels or procures the commission of an indictable offence. Section 5l provides that doing or attempting to do FGM is an indictable offence. The general criminal law Acts concerned are the Criminal Law Act 1997, the Criminal Justice Act 2006 and the Criminal Justice (Amendment) Act 2009. In a similar vein, the offence of conspiring with another person to do FGM is covered by the same general criminal law. Therefore, the amendment is unnecessary, but I thank the Deputy for the sentiment expressed.

Amendment, by leave, withdrawn.

Photo of Michael ColreavyMichael Colreavy (Sligo-North Leitrim, Sinn Fein)
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I move amendment No. 7:

In page 11, between lines 13 and 14, to insert the following:

"15.--The Minister shall, not later than 5 years after the establishment day, carry out a review of the operation of this Act and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.".

This is a reasonable amendment. The Bill has been widely welcomed but, in many ways, it is new legal territory and the question of how enforcement will operate is a little unclear. Therefore, it is important that we review the operation of the Act. The Mental Health Act 2001 contains such a provision and there is no reason that the same should not apply in this instance. There seems to be no good reason to prevent the amendment from being made and I urge the Minister to accept it.

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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Amendment No. 7 sets to establish an automatic review process for the Bill within five years from enactment. While the Bill does not make provision for a formal review within a specific timeframe, I assure the Deputies that the provisions contained therein will be subject to ongoing monitoring. Should any difficulty come to light, steps will be taken to address it in the most appropriate way. Therefore, I urge the Deputy to withdraw his amendment.

Amendment put and declared lost.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Photo of James ReillyJames Reilly (Dublin North, Fine Gael)
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I thank the Deputies who spoke on the Bill for their useful contributions and continued co-operation in advancing it. The Bill will return to the Seanad for its consideration of the two amendments that the Dáil introduced on Committee Stage. One was a technical amendment to update section 14 and the other was recommended by the Parliamentary Counsel to make specific provisions in section 16 for the commencement of the Bill. These provisions are desirable to clarify that the Bill is not retrospective and to ensure that no one will be charged under the Act until it is published in both official languages.

I emphasise that we in Ireland are in the fortunate position of being able to take a proactive approach to the prevention of FGM. We have the opportunity and duty to protect girl children and women in practising communities living in Ireland from undergoing this procedure. While legislation alone is never sufficient to tackle a problem of this gravity, the enactment of this Bill, which specifically prohibits FGM and includes extra-territorial provisions, will be a vital step in preventing FGM from taking hold in this country. The Bill, if and when enacted, will act as a powerful deterrent and will potentially empower practising communities living in Ireland to resist pressure from their countries of origin to preserve this custom, which we know to be misguided.

From speaking with non-governmental organisations, NGOs, and public health services, we know that the summer is the time when girls are most at risk of being victims of FGM, with families travelling back to practising countries during the school holidays. Therefore, I hope that the Bill can be re-examined and passed by the Seanad, enacted and commenced before the summer recess.

Once more, I thank Senator Bacik for raising this issue in the Seanad, encouraging the Government of the day to commence the preparation of the Criminal Justice (Female Genital Mutilation) Bill 2011 and giving the current Bill her continued support during its passage through the Houses of the Oireachtas.

Photo of Denis NaughtenDenis Naughten (Roscommon-South Leitrim, Independent)
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I welcome the passage of this legislation. I thank the Minister and his predecessor, Mary Harney, for their co-operation on the Bill, as well as the officials who facilitated our deliberations.

I have had an opportunity while attending an international conference on this issue to speak about the legislation. I explained that we were considering the use of extra-territorial jurisdiction. Few other countries have gone down that road but the Government is to be commended on the approach it has taken. The Members of this House are unanimous in their desire to see this brutal act outlawed not only in Ireland and Europe but internationally. The Council of Europe convention must be implemented internationally to deal with the issue of dual criminality. I hope we can ensure that happens.

I thank the Minister for the clarification he provided on certain aspects of the Bill. I urge him to work with his colleague, the Minister for Justice and Equality, to ensure that it is clearly understood from an immigration perspective that the practice will not be tolerated. This House has sent a clear message that Ireland will not tolerate it, whether it is performed in this jurisdiction or by those who have a legal right to be in this jurisdiction. I hope the Bill will be dealt with expeditiously by the Seanad and enacted into law before the summer because that is the time of the year when young girls are most at risk. Sadly, a substantial number of people within the African community who come from countries in which this is practised have been affected. Let us hope the next generation of those who are grow up in Ireland will not even know what FGM is.

Photo of Billy KelleherBilly Kelleher (Cork North Central, Fianna Fail)
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I acknowledge those who campaigned in this area for many years in Ireland and across the globe. That fight is not yet over because we have a long way to go in ensuring the international community steps up to the plate to stop this barbaric act. I commend the Minister and his officials for prioritising this Bill despite the pressure they are face. I appreciate their efforts in terms of fitting the Bill into the House's heavy legislative schedule and ensuring its swift passage.

Question put and agreed to.

Photo of Peter MathewsPeter Mathews (Dublin South, Fine Gael)
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The Bill, which is considered to be a Bill initiated in Dáil Éireann in accordance with Article 20.2.2° of the Constitution, will be sent to the Seanad.