Brendan Smith (Cavan-Monaghan, Fianna Fail)

I am very pleased to present to the Seanad the Criminal Law (Human Trafficking) Bill 2007. It is a relatively short but important Bill, not only for the criminal offences it will introduce into Irish law but for the very clear message it will send out on our determination to ensure that Ireland does not become a destination or transit point in the evil trade of trafficking in human beings.

Before I outline the purpose of the Bill, it might be useful for Senators if I explain the place of the Bill in the Government's comprehensive strategy for dealing with the growing world-wide problem of trafficking in human beings for the purpose of their sexual or labour exploitation. First, and most important because it underpins the other initiatives taking place, is the Bill which we are discussing today which criminalises trafficking and offers protections through the criminal law to trafficked persons.

Second, are the immigration issues. I will not dwell on these today because they are contained in the Immigration, Residence and Protection Bill 2008 and there will be ample opportunity to discuss them when that Bill comes before this House. The Council of Europe convention on action against trafficking in human beings specifically requires parties to the convention to take legislative measures to provide a period of recovery and reflection for alleged victims of trafficking. Therefore, I will briefly draw attention to section 124 of that Bill which provides for such a period of recovery and reflection. The period provided in the Bill is 45 days.

If it is necessary for the alleged victim to assist the Garda in its investigation or prosecution arising in relation to the trafficking, the Minister for Justice, Equality and Law Reform can grant permission for a further six months' temporary residence, which may be renewable. The Immigration, Residence and Protection Bill is clearly the appropriate place for such provisions as that Bill effectively modifies and restates the laws governing the entry into, presence in and removal of certain foreign nationals from the State.

The third element of the Government strategy is concerned with the protection of alleged victims of trafficking and the provision of services to them. This can be done administratively under the requirements of the Council of Europe convention. A new interdepartmental high level group has been established by the Minister for Justice, Equality and Law Reform to recommend the most appropriate and effective response to the Minister on those matters. The group is co-chaired by the Director General of the Irish Naturalisation and Immigration Service and the Assistant Secretary in the Department of Justice, Equality and Law Reform dealing with crime.

The group will consist of representatives of relevant Departments, An Garda Síochána and the Health Service Executive. It will bring on board as appropriate new members from other offices and agencies that have a contribution to make to ensure the response of the State is co-ordinated, comprehensive and more holistic than it has been to date. The group will decide on the most appropriate way to engage constructively with the non-governmental organisations and other interested parties to ensure the most effective response to this crime. The NGO community will have an important role to play, particularly in the provision of services to victims.

Also a member of the group is the newly appointed executive director of the new anti-human trafficking unit in the Department of Justice, Equality and Law Reform, Ms Marion Walsh. A key objective of the group will be to draft a national action plan under four main headings — prevention of trafficking and awareness raising, prosecution of traffickers, protection of victims, and response to child trafficking. Additional resources have been assigned to the new anti-trafficking unit.

Having placed this Bill in the context of the other initiatives taking place, I will turn to its purpose. It is a criminal law Bill that introduces specific criminal offences of trafficking in persons for the purpose of their sexual or labour exploitation or for the removal of their organs. Legislation in the area of human trafficking already in place is largely designed to deal with smuggling of human beings, as contained in the Illegal Immigrants (Trafficking) Act 2000, and trafficking in children for the purpose of sexual exploitation, as contained in the Child Trafficking and Pornography Act 1998.

The provisions of the Bill are extracted from the general scheme of the Criminal Law (Trafficking in Persons and Sexual Offences) Bill 2006. In addition to trafficking issues, that general scheme also contained provisions relating to the protection of children from sexual exploitation. The Minister for Justice, Equality and Law Reform has decided to proceed without those provisions in order to expedite the drafting, publication and enactment of the trafficking provisions.

The provisions protecting children have not been forgotten. They will likely form the basis of further legislation but will be expanded to take account of developments since the general scheme of the original Bill was prepared. These include recommendations in the report of the Joint Oireachtas Committee on Child Protection, the provisions of the Council of Europe Convention on the protection of children against sexual exploitation and sexual abuse and views received on the general scheme. It is also intended to update and to bring the legislation underpinning the sex offenders register more into line with that in our neighbouring jurisdictions and to further strengthen the legislation on sexual grooming in the light of continuing developments in technology.

The Minister for Justice, Equality and Law Reform stated shortly after his appointment that bringing forward legislation in the area of human trafficking would be a priority for him. The early publication of this Bill is testament to that commitment. Creating offences criminalising the trafficking in persons for the purposes of their sexual or labour exploitation or the removal of their organs will enable the Garda to deal more effectively with the trafficking of human beings into, through or out of the State and to co-operate more fully with other police forces in breaking up the international gangs that are often involved in such trafficking.

Human trafficking takes many different forms. It is dynamic and adaptable and, like many other forms of criminal activity, it is constantly changing in order to defeat efforts by law enforcement agencies to prevent it. The responses to the problem are also rapidly evolving. International co-operation, which is so crucial to the success of most interventions against human trafficking, is gaining new momentum and new co-operation mechanisms are being developed. Recently, the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, announced further initiatives to deal with other aspects of this phenomenon, to which I will return later.

Before turning to the detail of the Bill, I wish to make clear that I consider trafficking in human beings an abhorrent crime and a violation of fundamental human rights. It is a crime which involves many persons, including recruiters, facilitators of transportation and fraudulent employment opportunities, exploiters and end beneficiaries of so-called goods and services provided and produced by trafficked persons. While most persons' idea of trafficking would be of ruthless international gangs, that is not always the reality. The profits from trafficking in persons are in the same league as profits from drug trafficking and smuggling of weapons but it is a well-established fact that the recruiters are sometimes women who are neighbours, friends or even members of the family of the unfortunate victims.

The year 2007 marked the bicentenary of the abolition of the slave trade in the former British empire. Trafficking in persons has been described as a form of modern day slavery. I want to send a clear message that the criminal trading of people as commodities, for whatever purpose, has no place in a modern Ireland. This form of modern day slavery is an evil crime with no regard by the perpetrators for the human or societal consequences. It is known that traffickers exploit people's desire to have a better life. They prey on those who are vulnerable because of poverty or other social reasons. They deceive people into travelling with the promise of a better life. Instead, the victims often find themselves trapped and unable to leave exploitative and abusive situations. They become commodities who are moved, bought and sold many times to maximise profits. Sadly, it is a multi-billion dollar business.

It is a crime that is transnational, almost by definition, and can best be addressed in an international context. The European Union, the Council of Europe and the United Nations have all prepared instruments addressing this issue. The criminal law provisions of the following instruments have been taken into account in drafting this Bill: the EU framework decision on combating trafficking in human beings; the Council of Europe convention on action against trafficking in human beings; the optional protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and the protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the UN Convention against Transnational Organised Crime.

Ireland was involved in the negotiations on these instruments and will continue to fulfil its obligations to participate in the activities of many international organisations against human trafficking. The Department of Justice, Equality and Law Reform and the Garda Síochána are currently participating in meetings of the European Union, the Council of Europe, the United Nations, the Organisation for Security and Co-operation in Europe alliance against trafficking and the United Kingdom Human Trafficking Centre.

The Government is committed to tackling this crime and recognises the need to draw together all the work that is being done across the various Departments and agencies. While there is no evidence of an appreciable human trafficking problem in Ireland, any level of this crime is deplorable and unacceptable. Due to its clandestine and criminal nature, accurate statistics on the magnitude of the human trafficking problem are elusive and unreliable. The Office to Monitor and Combat Trafficking in Persons at the State Department in Washington estimates that 800,000 people are trafficked worldwide each year. International experts estimate that at any given time some 2.5 million people throughout the world are recruited, entrapped, transported and exploited. The United Nations Office on Drugs and Crime reports that trafficking in persons, whether for sexual exploitation or forced labour, affects virtually every region of the world. Data taken from the database on human trafficking trends document the trafficking of human beings from 127 countries to be exploited in 137 countries.

Evidence to date would suggest that trafficking into Ireland is not at present a significant problem, although any case of trafficking is one too many. However, it would be naive to think it is not potentially a serious problem and could grow without remedial action. Recent research concluded that a minimum of 76 women were probably trafficked into Ireland in the past seven years. This is 76 too many and is indicative of a small but growing problem.

Among the difficulties in calculating the true number of persons trafficked into Ireland are the different definitions used to describe trafficking and confusion in the differences between trafficking and smuggling. The definition of trafficking in the Bill will provide a standard internationally-recognised meaning of trafficking in human beings. It can be distinguished from smuggling in persons as follows. Smuggling will always involve illegal border crossings with false or stolen documents. It is always voluntary and is ultimately a crime against the State. Trafficking can involve legal or illegal border crossings or even no border crossings. Documents may be genuine or forged and usually will be taken from the victim by a person in the trafficking network. Coercion and repeated exploitation are usual, with restrictions on and control of the victims' movements. It is a crime against the individual. What trafficking and smuggling have in common is that they are profitable criminal enterprises involving human beings and carried out by criminal networks.

Trafficking offences are difficult to prosecute for some of the same reasons that they are difficult to investigate. Because of the nature of the offence, the frequent need to rely on evidence collected abroad and the potential for victims and witnesses to be traumatised and intimidated, the prosecution of these offences offers new and difficult challenges. However, absence of reliable statistics does not justify inaction in response to the problem and enhanced international collaboration and the development of stronger witness protection measures must be part of any strategy to address these challenges.

In addition to the measures to combat trafficking I have already outlined, the Garda National Immigration Bureau will continue to deploy whatever resources are necessary to counteract the problem of human trafficking. That office and the Department of Justice, Equality and Law Reform are actively co-operating with the UK agencies on Operation Pentameter 2, which was launched a couple of months ago in London. This is a co-ordinated campaign of law enforcement activity to tackle the trafficking of human beings for sexual exploitation into Britain. Due to the land border and the common travel area, co-operating with and contributing to such operations makes practical sense. Officers from the Garda Síochána and officials from the Department of Justice, Equality and Law Reform sit on the operation's gold command team as observers and have developed new contacts throughout the policing and non-governmental organisation community in Britain.

The Garda Síochána continues to fully co-operate with the UK Human Trafficking Centre. The centre, which is the UK law enforcement response, is quickly becoming a centre of excellence. Last year, officers from the centre participated in the training of more than 100 gardaí in issues relating to human trafficking and victim identification and care. Ireland is part of a European G6 initiative against human trafficking. This initiative, launched last October, is a co-ordinated international campaign of activity to tackle the trafficking of human beings. Six European countries are participating, namely,the UK, Poland, Italy, the Netherlands, Spain and Ireland, and the initiative is supported by Europol, Interpol and Eurojust. It is a multi-strand operation marrying strategic policy development with a period of operational policing enforcement activity. The strands of the initiative are intelligence gathering led by Europol, an enforcement strand led by the Netherlands relating to labour exploitation and by the UK in regard to sexual exploitation, an awareness strand led by Ireland, and a victim's strand led by the UK and Ireland.

Ireland hosted an international meeting on awareness raising in Dublin on 15 January 2008 as part of its lead role in that strand. The meeting documented and discussed the effectiveness of all the awareness raising campaigns carried out in participating countries in the past three years. As an outcome of the meeting, detailed proposals for a shared campaign this year designed to raise awareness and discourage demand for services of victims of sexual and labour exploitation in participating countries are being prepared. The G6 initiative is designed to ensure the EU becomes a more hostile environment for criminals engaged in trafficking. Through initiatives such as this which involve practical co-operation between member states and Operation Pentameter 2, we learn more about the problem of human trafficking in the European Union. This will help us develop the necessary domestic structures to ensure human trafficking does not become a substantial problem here.

I would like to outline the Bill's main provisions. Section 2 defines several important terms used in the Bill. The terms "exploitation", "labour exploitation", "sexual exploitation" and "trafficks" are given meanings based on what is required or intended by terms used in the international instruments to which I have referred.

Section 3 creates an offence of trafficking a child for the purpose of the child's exploitation. "Exploitation" in this section does not include sexual exploitation which is dealt with at section 4 by way of an insertion into the Child Trafficking and Pornography Act 1998. This section criminalises persons who traffick children for the purpose of labour exploitation or the exploitative removal of their organs. The causing of an offence or an attempt to commit an offence is also criminalised. The section provides for a maximum penalty on conviction on indictment for committing any of the offences in the section of life imprisonment and, at the discretion of the court, an unlimited fine.

Section 4 substitutes new provisions into the Child Trafficking and Pornography Act 1998. It provides a new definition of "sexual exploitation" which is more in line with the definition of "sexual exploitation of adults" in section 2 and defines "child" for the purposes of the section as a person under 18 years. Under the 1998 Act a child was defined as being under 17 years. Raising the age is in line with international norms and is also required by the international instruments on trafficking.

I propose to create an offence of trafficking in persons aged 18 years or over for the purposes of their sexual or labour exploitation or the removal of organs under section 5. Currently no specific legislation protects adults. The Illegal Immigrants (Trafficking) Act 2000 was designed primarily to deal with people smuggling. A person involved in trafficking invariably commits other serious offences such as rape, assault, abduction and false imprisonment. The wording in this section closely follows the wording in the EU framework decision on combating trafficking in human beings which, in turn, is closely aligned to the wording in the UN protocol to prevent, suppress and punish trafficking in persons, especially women and children, and the Council of Europe Convention on Action Against Trafficking in Human Beings.

The main difference between section 5 and sections 3 and 4 is that while children cannot consent to being trafficked, older persons can. The international instruments all recognise this and, for an offence of trafficking in adults to take place, there must be threats or use of force or other forms of coercion, abduction, fraud, deception, the abuse of power or of a position of vulnerability or of giving or receiving of payments or benefits to achieve the consent of the person having control over another person. The concept of adults consenting to being transferred from one jurisdiction to another is controversial but we must accept adults can give a valid consent and, in some cases, as I mentioned, there is confusion between trafficking and smuggling. If a trafficked person subsequently consents to the exploitation for which that person was trafficked, however, that will not invalidate the offence of trafficking.

This section also places mentally impaired persons in the same position as children who are trafficked. Consent is not an issue. The definition of "mentally impaired" is the same as that contained in the Criminal Law (Sexual Offences) Act 1993, that is, "suffering from a disorder of the mind, whether through mental handicap or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or guarding against serious exploitation." This definition is used generally in criminal law provisions, particularly those that protect mentally impaired persons against sexual abuse or sexual exploitation.

Section 5 also includes a new offence of selling, offering for sale or purchasing a person. This is not a requirement of the international instruments and, while not confined to trafficked persons, it acknowledges that those persons can be sold and purchased many times, whether en route to or in the destination country. This can result in repeated suffering for the trafficked person. A similar offence in section 3 relates to the selling or purchasing of children. A person found guilty of any offence under section 5 is liable to a maximum penalty of life imprisonment and, at the discretion of the court, an unlimited fine. The severe penalties for these offences are an indication of how seriously the Government considers the crime of human trafficking.

Section 7 deals with jurisdiction. Ordinarily, Irish courts accept jurisdiction for offences committed within the jurisdiction. International instruments call for wider jurisdiction provisions, some mandatory, some voluntary. The provisions contained in section 7 are based on the jurisdictions contained in the Sexual Offences (Jurisdiction) Act 1996. We automatically accept jurisdiction when an offence is committed in the State, including on ships or aircraft registered in the State. We are also in the Bill accepting jurisdiction where an Irish citizen or person ordinarily resident in the State is alleged to have committed a trafficking offence abroad or where a trafficking offence is alleged to have been committed in another country against an Irish citizen or a person ordinarily resident in the State. When an Irish person does something in another country that is not an offence in that country but if committed in the State would be an offence, that person cannot be prosecuted here as he or she has not committed an offence. Sections 8 and 9 contain standard provisions regarding proceedings relating to offences committed outside the State and double jeopardy.

Section 10 provides for exclusion of members of the public from proceedings. Trafficked persons can be very vulnerable and traumatised and the traffickers and their criminal associates may wish to harm them or members of their families or prevent them from giving evidence. This provision will give a judge power to exclude from the court persons other than officers of the court, persons directly connected with the proceedings or other persons as the judge may determine. This will ensure a lack of publicity surrounding these cases.

Section 11 is another protective measure. It provides for a guarantee of anonymity of alleged victims of trafficking unless the judge fully or partially waives the anonymity in the interests of justice. Breach of this section could have serious consequences for the alleged victim. Accordingly, an offence under section 11 will be triable on indictment with a maximum penalty on conviction of an unlimited fine and-or ten years' imprisonment.

Section 12 contains another protective measure for alleged victims. An amendment to the Criminal Evidence Act 1992 will allow an alleged victim of trafficking to give evidence through a live television link, with the leave of the court in the case of adults, from either within the State or abroad.

Section 13 provides for amendments to the Sex Offenders Act 2001. Some of these are technical in nature but others are important for the smooth operation of that Act. An important amendment raises the maximum penalty for non-compliance with the notification obligations in the Act, which

The amendment in section 14 to the Bail Act adds the offences created in the Bill to the Schedule of that Act. This means they are serious offences for the purpose of the Bail Act.

As I mentioned earlier, there has to be a co-ordinated comprehensive approach to the challenges presented by international trafficking gangs. This Bill deals with the criminal law response to these challenges. The offences in the Bill are comprehensive, going beyond the requirements of the international instruments but retaining all the essential elements of the meanings given to terms such as "trafficking", "sexual exploitation" and "labour exploitation" in those instruments. This is important for ratifying the instruments and for international co-operation.

On enactment of the Bill, we will be in full compliance with the EU framework decision on trafficking. I hope I have adequately explained the legislative, administrative and operational initiatives that are being taken in tandem with this Bill to comprehensively address any existing manifestations of trafficking in this country and to prevent proliferation in trafficking. As soon as progress is made on the administrative initiatives we will be in a position to ratify the UN protocol. We will first have to ratify the parent convention against transnational organised crime but, with the administrative response in place, ratification of the Council of Europe Convention on Action against Trafficking in Human Beings can take place as soon as the Immigration, Residence and Protection Bill is enacted.

I wish to briefly address the question of whether we should provide for the criminalisation of using or availing of the services of a trafficked person. When this issue was raised during the debate in the other House, the Minister for Justice, Equality and Law Reform undertook to consider it and, if it proved feasible, introduce an appropriate amendment in this House. From a policy point of view, the arguments are finely balanced and it is not beyond argument that such an offence would work to the detriment of trafficked persons because it also would be almost impossible to prosecute. However, it would send out a message that using the services of a trafficked person is unacceptable and could potentially have repercussions for the client. Other aspects to be borne in mind in any such amendment are that trafficking can be for sexual or labour exploitation or for removal of organs and that the trafficked person can be a child or an adult. For example, it is already a serious offence to have sex with a child under 17 years of age irrespective of whether the child was trafficked. I look forward to hearing the views of Senators on this complex issue and, in the meantime, the Department is considering whether and how such an amendment could be worded.

I look forward to a positive debate on the Bill. It is a crucial part of the Government's response to the cruel trade of trafficking in human beings and I have no hesitation in commending it to the House. As Minister of State at the Office of the Minister for Children and the Department of Justice, Equality and Law Reform, it is my pleasure to present the Bill to the Seanad.