Ivana Bacik (Independent)

I welcome the Minister of State at the Department of Health and Children, Deputy Áine Brady, and I thank her for her interest in this issue. I am delighted to introduce this important Bill on behalf of the Labour Party. My colleague, Senator Prendergast, will refer to the health implications and definition of female genital mutilation or FGM.

FGM is a practice carried out in certain countries which violates the human rights of girls and women. It involves the cutting of the genitalia and causes long-term physiological, sexual and psychological effects. It has serious and permanent health implications and can cause death. Senator Prendergast will deal more fully with the implications.

I wish to focus on the reasons we should seek to legislate on the issue of FGM, but before I deal with that question and the provisions of the Bill, I record my appreciation for the goodwill shown by the Minister of State, Deputy Áine Brady and the Minister for Health and Children, Deputy Harney, towards legislating on the issue. Senator Feeney will speak on the amendment to which, I believe, a change may be made. I very much appreciate that the Minister and her officials have been heavily involved in working on a legal framework for FGM, about which I will speak more.

On the question of why we need specific legislation, the first point is that there is no specific legislation dealing with the issue of female genital mutilation in this country, although FGM is recognised as a violation of the human rights of women and girls. The United Nations and the European Union have both called on member states to take all measures necessary, including the introduction of specific legislation, to prevent female genital mutilation. Several European Union and African countries have enacted such legislation which is seen as part of their child protection policies. This is not just an issue about women's rights; it is also very much an issue about children's rights and child protection. Ireland has not yet enacted such legislation. Not only is there an obligation on us to respect the rights of women and children by criminalising this specific violation of their rights, but we were also urged by the United Nations Committee on the Rights of the Child in 2006 to consider prohibiting FGM in domestic legislation.

A third imperative on us to legislate specifically for FGM stems from recent changes in our demographic make-up and population. It is estimated that approximately 2,500 women living in this country underwent female genital mutilation before they came here. AkiDwA and other organisations estimate that approximately 10,000 women and girls living in Ireland have come from countries in which FGM is practised. It is clear that many of them are at risk of being returned to these countries to have FGM carried out. Female genital mutilation is a serious child protection and women's health issue that has real implications for girls and women living in Ireland. It is not just an issue for girls and women in other countries.

A good deal of work has been done at national level on the need to legislate on the issue of FGM. I pay tribute to the many groups, some of which are represented in the Visitors Gallery, which have been working on the issue. AkiDwA is the organisation which represents women from other countries living in Ireland, especially African women. Other groups include the Irish section of Amnesty International, Barnardos, Cairde, the Children's Rights Alliance, Christian Aid, Comhlámh, Integrating Ireland, Integration of African Children in Ireland, the Irish Family Planning Association which has led the national FGM steering committee, the National Women's Council of Ireland, the Refugee Information Service, the Somali Community in Ireland, the Somali Community Youth Group, UNICEF and the Women's Health Council. In addition, the Health Service Executive and Irish Aid have been very much involved in the steering committee which in 2008 launched a national plan of action to address the issue. That plan, on page 12, included among its principal actions the need to enact legislation to specifically prohibit FGM in Ireland. Material has been circulated to colleagues in this House by some of the NGOs involved in the steering committee. They have also been provided with a copy of the national plan of action which states legislation by itself will not be sufficient to prevent FGM but it can strengthen the ability of agencies to protect children at risk and provide appropriate care. It refers to obligations under international law and human rights treaties such as the Convention on the Elimination of All Forms of Discrimination against Women which calls on signatory governments to take all measures necessary, including legislation, to prevent FMG.

This is not the first time the need to enact legislation on the issue of FGM has been recognised by the Labour Party. In 2001 the then health spokesperson, Deputy McManus, introduced a Bill in the Dáil. I refer to the reply on 22 May 2001 of the then Minister for Health and Children, Deputy Martin, to a question from Deputy McManus. He agreed that female genital mutilation:

is a harmful traditional practice which constitutes an assault which causes serious harm to girls and women on whom it is carried out. Such an act is an offence under the Non-Fatal Offences Against the Person Act, 1997. It would, therefore, be a matter for the Garda Síochána to prosecute any person who performed FGM in Ireland. However I am considering whether it may be appropriate to enact legislation specifically prohibiting this practice.

My Department has recently written to the chief executive officers of the health boards, drawing their attention to this issue and requesting that personnel working with immigrant populations take opportunities to educate them about the dangers and unacceptability of female genital mutilation. My Department has also written to the Department of Justice, Equality and Law Reform asking it to arrange through the Directorate for Asylum Support Services that asylum seekers are made aware of the situation.

As far back as nine years ago the then Minister for Health and Children was considering whether specific legislation might be appropriate to prohibit FGM. In 2009 another Labour Party colleague, Deputy Jan O'Sullivan, introduced an updated version of Deputy McManus's Bill in the Dáil, but, again, it was not accepted by the Minister. The Bill before the Seanad is an updated version of previous Bills. There has been a great deal of consultation at the level of the national steering committee and much input from various NGOs and State agencies with expertise in the area. There is a growing imperative from international and European Union sources on us to legislate.

I wish to deal specifically with the obstacle that was placed in the way of introducing specific legislation in 2001. The point made by the then Minister, Deputy Martin, was that the Non-Fatal Offences Against the Person Act 1997 already covered the issue. A good deal of work has been done in that regard. Our assault law should cover FGM, as it is an assault that causes serious harm. However, there are problems with the 1997 Act in trying to apply it to something as specific as FGM. The problems in applying general assault law were recognised in Britain as far back as 1985 when its first prohibition of FGM Act was passed. The legislation has since been updated in an Act dating from 2003 that applies to the rest of the United Kingdom but not Scotland. The Department of Health and Children is considering the specific Scottish legislation. It has been recognised in our neighbouring common law jurisdiction that the general assault law is simply not specific enough to cover FGM.

The same applies to the 1997 Act. Last year the national steering committee spelled out the four reasons that was the case. First, the Act does not have an extra-territorial element. Specific legislation is needed to prevent children resident in Ireland from being taken out of the country to undergo FGM. This relates to the specific nature of FGM and the specific danger to some of the 10,000 women and children living in Ireland who are from countries in which FGM is practised and, therefore, at risk of being brought back to the countries from which their families originally came and forced to undergo FGM. British legislation now recognises the extra-territorial aspect. That is the first gap in the current law. It is clearly one in child protection legislation, in particular, as FGM is an issue that affects female children. Within the 15 original European Union member states Ireland is one of only three countries in which its legislation covering FGM does not have an extra-territorial element. That is a real problem. There is a discrepancy between theNorth and South in that respect.

The second problem is presented by the defence of culture. The Non-Fatal Offences Against the Person Act contains a definition of assault that includes a defence where a crime has been committed in circumstances deemed generally acceptable in the ordinary conduct of daily life. The problem is that this defence could be used as a cultural defence to prevent a successful prosecution for practising FGM. The steering committee has highlighted this difficulty.

The third reason is that international best practice requires that we have specific legislation criminalising FGM. We should not rely on the general law of assault.

The fourth reason is that there is a difficulty with the defence of consent. I have written a good deal on this issue because it is a serious problem within the Non-Fatal Offences Against the Person Act 1997. We have dealt with this in the explanatory memorandum. Clearly, FGM should be considered as a serious assault causing harm or serious harm. However, for the section 4 offence in the Act of causing serious harm, consent may not be a defence in Irish law. Following English precedent in the case of R v. Brown, in which the House of Lords stated consent was no defence in serious assault charges, consent may, of course, be a defence in certain recognised exceptions. The status of consent has never been made absolutely clear in Irish law. However, we know the 1997 Act preserves common law rules around defence. Therefore, there is uncertainty as to whether a person could be prosecuted for practising FGM where the parents had consented to a child undergoing FGM. There was a prosecution that failed relating to a boy child who had died after non-medical circumcision was practised. There is a parallel in this regard. An issue arose from the fact that the parents had consented. This illustrates some of the difficulties we face.

The Bill is very short and clear; it simply defines the terms "medical practitioner" and "woman or girl". It provides in section 2 for the offence of performing FGM and states consent is no defence. It defines FGM and provides in section 3 for extra-territorial effect and in section 4 for the consent of the Director of Public Prosecutions.