Rónán Mullen (Independent)

In the short time available to me I want to concentrate on some points relating to this Bill. First, I am concerned that the terms of section 5, which criminalises the trafficking of persons other than children, may not be sufficiently broad to catch the situation where people engage in or facilitate the trafficking of persons who may consent to enter the country of their own accord, perhaps voluntarily in the belief that, whatever their experiences in their home countries, life could be better in Ireland. I mean that in the case of exploitation within the sex industry or in terms of labour.

I share the concerns raised by others about the failure of the Bill to meet the needs of victims of human trafficking by prescribing in the necessary detail the rights and benefits of which they should be allowed to avail. The Minister argued he would deal with victim protection under the Immigration, Residency and Protection Bill and cannot deal with it in the current Bill as it could be seen as an incentive for a victim to testify and be used by the defence, but the provisions in the Immigration, Residence and Protection Bill that a victim of trafficking would be allowed a period of recovery and reflection and that there would be a discretion to give a visa of six months of temporary residence for victims of trafficking do not go far enough. What about provisions such as social welfare? Victims may be too traumatised to work for a period. What about access to medical and psychological assistance? These issues are not covered in the Immigration, Residency and Protection Bill. The residence provision will be of assistance only to trafficked persons from outside the European Economic Area. There is no provision for the wider needs of trafficked persons, whether from inside or outside the EEA.

I am also concerned by the failure of the Bill to provide that victims of trafficking will not be punished, either for being in the State illegally or for offences, for example, those associated with prostitution. I accept we do not want to create a loophole that would be exploited by persons who are not victims of trafficking, but it should be possible to provide the necessary protection. It would be anomalous if people who are victims of trafficking could be liable to prosecution while those who would avail of their services get off scot free.

This brings me to the fact that on Report Stage in the Dáil the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, gave an undertaking, in response to contributions from Deputies Pat Rabbitte and Denis Naughten, to bring forward an amendment which would criminalise those who avail of sexual services provided by trafficked women working in prostitution, as recommended by the Council of Europe among others. In the Seanad last week, the Minister of State with responsibility for children, Deputy Brendan Smith, invited us to give our views on the question of whether we should provide for the criminalisation of using or availing of the services of a trafficked person. I hope that is not a row-back, but it is certainly sounds like it.

I note the comments of the Minister, Deputy Brian Lenihan, in the Dáil, that his concern is for the alleged victim of trafficking and "one must make a judgment on what is in his or her best interest". That must be our starting point, but I did not find satisfactory the Minister's Dáil explanation of the difficulties that would be entailed by criminalising the users of trafficked women.

I have some sympathy with his view that it would be difficult to get a conviction because the prosecution would be obliged to prove that the accused knew that the alleged victim had been trafficked. It would be difficult, but not impossible. It is a matter of enforcement and, specifically, a question of proper resources for those who would investigate such crimes.

I found somewhat bizarre the argument that the user of the sexual services might be the best chance a victim has of escaping her ordeal and that such users would be less likely to help if they knew they had committed an offence, for example, by having sex with a trafficked person. The notion of such users being ready to act as white knights is rather far-fetched. That would be very rare if it were ever to happen.

All things considered, the Minister was right to tell the Dáil that, "In terms of legal policy, if one wants to provide for what is being suggested [the criminalisation of the users and those who avail of the services of trafficked persons], one must criminalise the purchase of sex generally", and that is in the context of prostitution. I note and welcome what my colleague, Senator McDonald, said and I hope she will put pressure on the Government to bring her aspiration to fruition.

The Minister should move to that position of criminalising the users of sexual services generally, and I will table amendments for Committee Stage dealing with the criminalisation not only of those who use and avail of trafficked persons but of those who use and avail of the services of persons in prostitution generally.

It may well be, as the Minister claims, that a report commissioned by the Norwegian Government, which examined the impact of differing approaches to the sex industry in Holland and Sweden, concluded in the case of Sweden that whereas the abolitionist approach to prostitution had reduced the number of women on the streets, it may have had unintended consequences such as sending the industry further underground and thereby increasing women's vulnerability. We must note this word "may". Ruhama, which does excellent work accompanying women caught up in prostitution, including many trafficked women, reports the views of various colleagues and contacts in Sweden, working within non-governmental organisations and for the Swedish authorities. These all maintain that the Swedish legislation, which criminalises the purchasers of sex generally, has had a positive impact in tackling both human trafficking and prostitution. Fears that the criminalisation of the user will drive trafficking and prostitution further underground ignore the fact that much of this activity, by definition, already is underground.

We must realise that there will always be a part of this murky world that will be far underground and that developments in mobile phone and internet technology, for example, mean that a certain amount of trafficking and use of prostitution will be difficult to reach despite the best efforts of legislation. This is what we have seen in Sweden, which has seen far fewer women in prostitution on the streets but may also be experiencing less of the underground activity relative to neighbouring and other countries. Rather than relying on reports, I hope our policymakers, and the Minister, in particular, would be in touch with the Swedish authorities who appear to have no inclination to reverse their enlightened law of 1999. They appear to believe that trafficking and prostitution have not increased in their country, bucking the trend in other countries. They believe they have fewer problems with trafficking than any other country in the European Union.

It is worth noting that the other country studied by that Norwegian report, namely, Holland, which went the route of regularising prostitution and, presumably, almost giving people the equivalent of PPSNs, found that it still had problems with an underground dimension to the prostitution problem, which suggests to me that there would be no harm done by criminalising the users. A few weeks ago I had the pleasure of meeting and being briefed by Ms Agneta Bucknell who worked in Stockholm in the state social services for women in prostitution. She advocates legislation along the Swedish model.

Let us be clear. It would be unjust to have trafficking legislation which could potentially prosecute the victims of trafficking but could allow those who exploit these persons get away because their acts are not considered criminal in Ireland. Let us remember that given the vulnerability of many of the people involved, one could be speaking about people effectively getting away with rape. Let us be clear also that it is inconsistent to attempt to criminalise situations where users avail of trafficked adult persons but not to extend this protection to other adult persons.

I cannot understand why it is not more obvious to policymakers that by criminalising the users of women in prostitution, we would bring about a negative impact on the number of those who use the services of prostitutes in general and of trafficked women in particular. I worry that there is an element of fatalism in policymakers' minds about prostitution being the oldest profession, etc. Perhaps worse, there may be even some who believe that prostitution provides some kind of a vent for the sexual energies of people who, apparently, cannot be controlled.

We need to get back to first principles. We are talking about solidarity with other people. In this case we are talking about solidarity with persons engaged or caught up in prostitution, many of whom have been trafficked. We need to remember that the law has the capacity to influence people's behaviour. When something is criminalised, many people are deterred from engaging in it. In other situations, we see how much benefit the criminal law is as an influence on people's behaviour. How can we legislate to prohibit smoking in public places, litter, drink driving or speeding, but not legislate to prohibit people from exploiting the bodies of other people, generally women, who in the majority of cases are not in the business out of anything that could be remotely described as unfettered free choice?

There are people who have a crazy notion that prostitution is something some women choose to do. This ignores all the pressures on women who make this so-called choice, it ignores the momentum legalisation or tolerance creates for other women to be exploited, it ignores the negative exploitative attitudes towards women which this generates and it ignores the wider impact on society.

Nobody disputes any longer that drink driving and speeding are hard to prevent, but neither do we dispute that enforcement is both possible and necessary. Today, I received a letter from Action on Smoking and Health, ASH, seeking the introduction of a ban on smoking in cars in which persons under 16 are being transported. That is a law that could be difficult to enforce and where convictions might be difficult to secure. Nonetheless, nobody suggests we should not attempt this, because we see the educative dimension of the law. We should have no more talk about laws being impossible to enforce and convictions impossible to secure or that the laws drive certain things underground. This kind of talk takes us into a moral and jurisprudential wasteland.

We need legislation to protect people and society from vice. The best way to do this is to target the user, not the person in prostitution or the one being trafficked to be exploited, whether in the sex industry or the labour area generally. If such legislation tackles the users and creates a massive disincentive for them, it will impact in the way we want on our trafficking problem. However, we also need the resources for enforcement of the criminal law.

We must resist the temptation to see victims of trafficking as just an immigration problem. The Minister has set up an anti-trafficking unit in the Department of Justice, Equality and Law Reform and this is welcome as is the proposed involvement of NGOs in the unit. However, I wonder whether the legislation should also provide a statutory basis for the unit, akin to the establishment of the Press Council for example, and set terms of reference which will set out — as Deputy Pat Rabbitte attempted to do in an amendment in the Dáil — the types of protection and assistance which will be available to victims of trafficking.

This legislation is timely, but we have some way to go before it takes a properly principled and humanitarian approach to the problems of human trafficking and the consequences of this serious problem for vulnerable people.