James Reilly (Dublin North, Fine Gael)

I thank the Senators for contributing to this debate and note the broad support for the Bill. Like others, I am shocked that this practice continues to such an extent across the globe, that our citizens are at risk in this country and that people who would like to view Ireland as their new domicile should still be at risk.

The main purpose of the Bill is to prohibit FGMs and to provide for related offences, some of which apply to certain extra-territorial jurisdictions. Having a specific Bill prohibiting the practice will bring legal clarity and certainty to the issue and, I hope, act as a powerful deterrent for practising communities. In drafting the Bill, my officials have been able to learn from international experience in this field and call upon experts to ensure the proposals are evidence-based and in line with best practice. This is an important principle of which we should continually remind ourselves, namely, that our policies as well as our medical practices should be evidence-based.

I will address some of the issues raised by Senators. The Government recognises that FGM is a violation of human rights and a form of gender-based violence. I take on board Senator Mullen's concern that this is a serious attack on the dignity of a human being. Mental health issues have been mentioned. The concern is that they might be used as a ruse or legal loophole. The exemption referring to the protection of mental health refers to the possible need for surgery for gender reassignment, intersex conditions or congenital malformations. As custom and ritual reasons cannot be invoked as a defence for this purpose, neither can the effects of not conforming with them. I hope this reassures Senators, but I would be happy to elaborate on Committee Stage and to take on board any amendment that strengthens this provision. Members should be clear that this is what the mental health section is about.

As worded, the Bill prohibits the process of reinbulation, which serves no purpose in respect of labour or birth and, therefore, is not exempted under subsection 2(2)(b).

The issue of permanent bodily harm is a complex one that posed some challenges. While the Government is clear that FGM in all its forms must be criminalised, it is not our intention to criminalise certain forms of genital piercing or cosmetic surgery for aesthetic purposes. In our deliberations, we were conscious that the rights of all women living in Ireland had to be balanced against one another. Therefore, the Government decided to use the broad WHO definition of what constitutes FGM, including Type IV. This category subsumes all other practices not included in Types I, II and III and usually refers to pricking, piercing, incising, scraping and cauterising. This decision was made to ensure that all forms of FGM were covered by the Bill on the basis that terms such as "pricking" can be used to legitimise or cover up more invasive procedures. An exemption was added to protect the freedom of choice over cosmetic or other procedures that do not violate women's human rights. This approach was chosen following extensive consultation with the Office of the Attorney General and the Office of the Director of Public Prosecutions. Under this exemption, no offence is committed if an act of FGM is committed against a woman of 18 years or over and where no permanent bodily harm is done. If, however, no consent was given for this act, it would still constitute assault and would be covered by the Non-Fatal Offences against the Person Act 1997.

Concerns have been expressed in respect of dual criminality. While it could be argued that the requirement of dual criminality is undesirable, the Government has been advised that it is necessary at present to comply with constitutional and international law. Only in exceptional circumstances are extra-territorial offences in criminal law provided for without a dual criminality requirement. Under Article 29.8 of the Constitution, the State may exercise extraterritorial jurisdiction in accordance with the generally recognised principles of international law. Under that, only offences jus cogens - against the conscience of the world - such as piracy, war crimes and terrorist acts carry universal jurisdiction. Where extraterritorial as opposed to universal jurisdiction is exercised, it almost inevitably includes a requirement for dual criminality.

Article 7 of the European Convention on Human Rights is of particular relevance in respect of this matter, particularly as it provides that no person shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. However, I am aware that Ireland is involved in preparatory work relating to the draft Council of Europe convention on preventing and combating violence against women. Under the terms of this draft convention, the practice of FGM is condemned. In addition, it provides that there should not be a dual criminality requirement. The removal of dual criminality from FGM legislation could be revisited if the convention is ratified. The UK's Female Genital Mutilation Act 2003 does not include a dual criminality provision because the Government of that country is not bound by the requirements of a constitution which demands it.

The Bill before the House makes provision for offences which relate to removing a girl or woman from the State for the purpose of subjecting her to FGM. The relevant section mitigates the need for the dual criminality requirement. The Bill incorporates provisions to safeguard the privacy of the victim as well as that of the accused person, as set out in the Criminal Law (Rape) Act 1981 and the Criminal Law (Rape)(Amendment) Act 1990. Officials from the Department are currently examining the possibility of further strengthening the protection available to the victims of FGM. This protection is particularly pertinent to FGM cases as a result of the fact that the victims are likely to be children and the accused are often their parents.

In the context of raising awareness, the HSE awaits the enactment of the legislation to progress with printing information leaflets relating to FGM. Moreover, the executive has 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 female genital mutilation in recent years. I assure Senator Cullinane that we will investigate the instances to which he referred where citizens and non-nationals are not being afforded proper protection and information.

I again thank Senators for their contributions to this debate. Like many others, I thank Senator Bacik for introducing legislation on this matter last year. I look forward to further constructive examination of the Bill on Committee Stage.