James Browne (Wexford, Fianna Fail) | Oireachtas source

We are all very proud of our Naval Service and the commitment it has shown in its humanitarian efforts in the Mediterranean in the past. The Department of Foreign Affairs was extensively consulted on this legislation and it was approved by Cabinet to take to the Houses. I cannot speak to what prosecutions have or have not happened in the Mediterranean but I understand that in similar legislation in several countries, there is no defence of humanitarian assistance. I noted that there are only seven countries putting any kind of defence into their legislation in enacting this directive. We are one of those countries. Most states are allowing no defence at all in terms of the humanitarian assistance side of it. There are different systems and we are not comparing like with like. We are a common-law country with a Legislature and an independent DPP who decides whether or not to prosecute. We have the Constitution, the courts and appeals mechanisms. It is a very different system from that of some other countries. We must be careful in comparing what is, or is not, being prosecuted in other countries as somehow reflecting on what is being done in Ireland.

We have to get back to the starting point of why this legislation is needed, which is that it is almost impossible at present to prosecute the smugglers who are benefiting from the vulnerable people they are bringing into Ireland. We must take appropriate action to ensure we strengthen the law where it is weak and in a context where we are not getting those types of convictions. We want to get convictions against smugglers while also ensuring that those who are acting under humanitarian assistance are protected. There are different approaches but we are confident this legislation will protect people, whether individuals or organisations, who are acting on the basis of humanitarian assistance.

I have spoken extensively about how evidence to satisfy a prosecution can be very hard to come by, especially where, as is often the case with smuggling, there is a criminal enterprise, with many different people involved at different stages. If we have to prove the element set out in these amendments, it would become almost impossible to achieve the prosecutions we very much need to take against those who are engaged in criminal activity. If the relevant amendments were accepted, the DPP would be faced with an almost impossible threshold. We have tried to find a balance to ensure those acting out of humanitarian assistance will not be convicted. We have given a direction here to the DPP, with the defence being put in place, which is something the DPP does and must take into account when deciding whether or not to bring a case. A case will only be brought where the DPP believes there is an opportunity to get a conviction. We have seen tragic cases in the past where a wrongdoing has happened but the DPP's office has not brought a prosecution because it does not believe it can secure a conviction in front of a jury.

We have discussed this issue extensively. In the circumstances, unfortunately, I cannot accept these amendments.