Barry Ward (Fine Gael) | Oireachtas source

I think we have got away a little bit from what this Bill is trying to do. It is important to recognise that there is an enormous distinction between what happens in Italy, in terms of this kind of issue and what happens here. The Bill is designed to have effect here and is designed to refer to the prosecutorial authorities here in Ireland, not those in Italy. One of the most important distinctions that exists between the prosecutorial authorities in Italy and those here is political independence. The 1974 legislation that established the Office of the Director of Public Prosecutions here mandates specific political independence in terms of the job. That is not true in civil law jurisdictions in places such as Italy where the prosecutor is a political officer. What you might see in Italy in terms of aggressive prosecution is actually the carrying out of a political policy. That does not and cannot happen here in Ireland. I referred to this earlier, citing section 9(1)(b) in this Bill, which specifically precludes prosecution of people or creates a defence for those people who are accused of offences under this Bill, who are doing so for humanitarian reasons and do not have a pecuniary interest or benefit accruing to them as a result of it. Senator Higgins says we cannot rely on the DPP or we should not sit back and abdicate our responsibility to legislate and instead allow the DPP to make these decisions. That is the way our system works. While I understand what the Senator is saying, nor can we seek to involve ourselves in every decision, nor can we so significantly proscribe the activities of the DPP that we would tie the hands of the DPP. There there will be a new DPP this year so that office will change, but the DPP herself is the sole decider within that office. There is a raft of people who are highly qualified and I think it is fair to say they are compassionate, and who will recognise the purpose of this law.

Therefore I do not share the concerns of these amendments that would suggest that, for example, there is somehow going to be an aggressive prosecution of people who were never intended to come under this Act, who were never intended to become the target of prosecution such as people who have thought helped out family members and have done so without any benefit to themselves. By the same token, in respect of these three amendments, I do not think we can single out people who are below a certain age. In fact, I believe there are drafting difficulties with the amendments anyway, because there is a lack of definition in respect of what constitutes a family member, for example, but that is semantics. My concern is that there is a tenor to this debate which suggests that there is a danger that somehow there will come into being an autocratic prosecutorial system that will hammer down the heads of the people who are downtrodden, the victims who we are trying to protect in this Bill. There is no such danger. We have in this State, perhaps more than in the vast majority of our European neighbours, or indeed, the protocol states in this Bill, a system that in the first instance goes some distance to protect victims but also even those who are accused. It is a system that goes an even greater distance than most of our European counterparts to protect those people in the context of any criminal proceedings against them. I do not share the concerns of the proposers of these amendments. We have a very good system and it is incumbent on us to have trust in that system. If the system fails and becomes dysfunctional in the manner which Senator Higgins anticipates, then fine, we can come back to it but I do not see any problem with it. I see a system where we have built into the Bill, under section 9(1)(b), a provision that protects people. I do not see the aggressive prosecution of victims under this proposed legislation. In fact, I see a move by the Government to establish a regime that allows us to prosecute the people who are creating victims. It is a move that allows us to put in place a regime that allows the prosecution of people to do exactly the things that Senator Higgins, along with the rest of us, are totally opposed to. That is what the Bill does. I am concerned that if we go down the road of these amendments, instead of doing what the Senator is suggesting will be achieved, we will tie those prosecutorial hands, prevent convictions and make it more difficult to take action against the people smugglers, rather than the people smuggled.