Rónán Mullen (Independent)

Ba bhreá liom fáilte a chur roimh an Aire Stáit. Is deas an rud é mo chomharsa béal dorais, nach mór, a fheiscint sa Teach seo chomh minic agus is féidir.

I wholeheartedly welcome the introduction of the Bill by the Labour Party and congratulate its Senators for bringing it forward. I also welcome the Government's decision to move with dispatch and give a very appropriate and welcome commitment to publishing the heads of a Bill within an early timeframe. This is to be commended and I congratulate the Minister of State for so doing. This debate offers a rare and important opportunity to affirm the vitality and maturity of the legislative branch of our democracy. We see this maturity when the Government accepts proposals for good law, regardless of the source, even when the initiative is taken by an Opposition party.

As of April 2006, 2,585 women resident in Ireland had undergone female genital mutilation. The World Health Organization estimates that between 100 million and 140 million women worldwide have undergone FGM. Other speakers have referred to the detrimental physical, psychological, emotional, spiritual and social effects of this practice. Rights experts are in agreement that it constitutes a violation of fundamental human rights. It seems almost trite to say this, as it is so self-evident.

The primary target as regards FGM is young girls. Therefore, the issues of consent and authentic free will simply do not arise as defences. Even if there were cases where that defence was claimed and if there were cases of women who claimed they wished to undergo this procedure, it simply would not make FGM any more acceptable. The very nature of the practice is anathema to the overall good and wellbeing not just of individual women but also of the human race. It is important to recognise, at a time when many are tempted towards mentalities suggestive of cultural relativism, that there are certain absolutes, that certain things are always wrong, regardless of the time or place. It is important for us to recognise that anything that violates the dignity of a person, whether male or female, a child or an adult, simply has no place in a civilised society.

The purposes and effects of the Bill as proposed are prohibitive, normative and educative. Unless there were good reasons to oppose the Bill, I cannot see why the House would refuse to enact it. I think the Government has accepted the logic behind the Labour Party's proposal. It could be argued that there is not full certainty on whether the Bill will help to reduce the number of instances of FGM, but to my mind this would not be a persuasive argument. We should approach the Bill with a presumption in favour of its applicability and merits. If absolute certainty were to be an issue, the "better safe than sorry" mantra would be appropriate, especially in the light of the grave ethical and welfare issues involved.

Does the fact that this is a Private Members' Bill offer a reason to oppose the Bill? I hope we are mature enough to transcend such a petty attitude towards power. This evening's decision by the Government is the best that can be got. I do not think there is anything wrong with the Bill and do not see why it should not progress. However, the way we do things in this democracy is that sometimes the best we can get is a commitment from the Government to do the same thing within a shorter time. We will accept this and are grateful for that much.

A more legitimate criticism of the Bill might be to the effect that it could perhaps be seen as superfluous since the Non-Fatal Offences Against the Person Act 1997 already criminalises FGM, yet there would be serious problems with such an assertion. First, Article 3 of the Act states a crime has not been committed if "the act is, in the circumstances, such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is in fact unacceptable to the other person". Implicit in such a provision is a form of moral relativism, with cultural relativism being the primary justification given for not criminalising FGM in African societies. Clearly, we should be against cultural relativism if we are to be truly supportive and protective of the dignity of the human person in all circumstances.

Second, the 1997 Act does not have extra-territorial effect, unlike the Labour Party's Bill and in the vast majority of other EU countries with legislation which criminalises FGM. Only Luxembourg, Greece and Ireland have not legislated for the extra-territorial dimension and the possibility that FGM takes place extra-territorially. This is a glaring oversight because including extra-territoriality as part of FGM legislation makes it easier for families and individuals to overcome pressure from relatives abroad who actively seek to repatriate girls to make them undergo this practice.

The third argument against the 1997 Act is that it contains a defence of consent. This relativistic principle, although justifiable in other criminal law circumstances, does not take sufficient account of the nature of FGM or the socio-cultural structures of power involved in the practice. Just as cultural relativism is not appropriate, strict autonomy thinking does not help us to deal with principles such as this. Certain circumstances arise in which we should not be complete masters of our own destiny. For example, it ought not be legal for me to choose to cut off my arm. In the same way, the arguments that consent could ever provide a defence for this dreadful practice simply cannot hold because of wider considerations of human dignity, the needs of the community and the welfare of the person properly construed.

The fourth argument against the 1997 Act is that while common law jurisdictions are usually slower than their civil law counterparts to enact specific criminal statutes owing to their reliance on precedent, as far back as 1985 the UK Parliament legislated directly to deal with FGM. The rationale for its decision was the uncertainty that existed over whether common law would recognise a defence of consent to surgical treatment. In an Irish context one might also wonder whether the courts would falsely appeal to the constitutional protection for freedom of conscience or give credence to analogies with tattoos or cosmetic surgery. Bearing in mind that FGM is addressed in the UK by the updated Female Genital Mutilation Act 2003, which extends to Northern Ireland, in the absence of Irish legislation we run the risk of acting as a safe house in much the same way we do in respect of sex trafficking and prostitution.

The extra-territorial element of the Bill may be objected to as going too far or being devoid of practical effect but a precedent exists in the form of section 3(2)(b) of the Child Trafficking and Pornography Act 1998 which introduces a partial extra-territorial offence where a citizen meets or travels to meet a person outside of the State for the purpose of sexual exploitation. I believe the violation of human dignity and bodily integrity that FGM entails is not substantially different from sexual exploitation.

Positive law alone is not sufficient to dismantle the culture of FGM. Aid workers in Africa have told me that they can have a greater practical effect by promoting alternative cultural practices and rites of passage than they ever could through law reform. We cannot turn our back on the role of ethical norms and the educational force of the law. By specifically targeting FGM, this Bill helps to accomplish both these strategies in a way that a more general criminal statute could not. I congratulate the Labour Party on this timely initiative and commend the Government on responding in an appropriate fashion.