Colm Burke (Fine Gael)

While an amendment has not been tabled in respect of the issue I wish to raise, will the Minister for Health consider the matter? This morning, I received a comprehensive 31-page legal opinion regarding extra-territorial jurisdiction courtesy of Amnesty International. The opinion is that of Ms Maria McDonald, BL. I am unsure as to whether the Minister has seen it, but careful consideration should be given to the issue.

Section 4(1)(c) of the Bill refers to "a person who is a citizen of Ireland or is ordinarily resident in the State, and would constitute an offence in the place in which it is done." This rules out cases in which the act is carried out in a place where it is not illegal, which means the person could not be charged in Ireland. This is not the position of the UK legislation, under which the person can be prosecuted if the procedure is carried out in a country where it is not illegal.

The legal opinion, which was passed on to me by a Seanad colleague, cites a number of cases, in particular a judgment of Chief Justice Mr. Kevin O'Higgins. The Lotus case in international law dates back to 1927 and the Chief Justice referred to it during a case that related to Article 26 of the Constitution and the Criminal Law (Jurisdiction) Act 1975. He stated: "It is established in international law by the decision of the Permanent Court of International Justice in the Lotus Case that every sovereign State has power to legislate with extra-territorial effect in the sense that it may enact that acts or omissions done outside its borders are criminal offences which may be successfully prosecuted within its borders - this is sometimes called the jurisdiction to prescribe - provided that the events, acts or persons to which its enactment applies bear upon the peace, order and good government of the legislating State".

This seems to suggest there is no reason not to incorporate the relevant provisions in this Bill, as was the case in the UK. While it has been claimed that Article 29 of the Constitution prevents us from introducing such legislation, the legal opinion I have cited seems to hold a different view. Will the Minister consider it? It is unfortunate that, according to the figures we have received, 3,000 women in Ireland have undergone the procedure. More than 1,300 of those are from Nigeria. Under section 3, a person who removes a girl or woman from the State can be prosecuted. However, a person involved in carrying out the procedure in another state where it is not illegal can only be prosecuted for removing the girl or woman and not for carrying out the procedure. I ask that the Minister take another look at this matter. I will try to make the opinion available to him. I have already discussed this issue with the Minister's departmental officials who have outlined the reasons this cannot be included. However, I believe this issue should be revisited prior to the Bill going before the Dáil.