James Browne (Wexford, Fianna Fail) | Oireachtas source

I thank the Senators for their proposal. I recognise the desire to increase clarity in this area. In providing a general defence of humanitarian assistance, we are going well beyond what most other member states have done in the implementation of the same directive.The discretion in Article 1(2) to exclude humanitarian assistance from the scope of the offence has been taken up by only seven member states and in many cases, the exemption provided by those states is more narrowly drawn that what we have proposed within this legislation.

The defence in the Bill is broad and generally applicable. It covers those active humanitarian assistance purposes otherwise than for material gain. It also makes special provision for those who are paid employees of humanitarian assistance organisations.

While I understand the desire to define each and every term used, there is a balance to be struck between attempting to foresee every eventuality as legislators and leaving the courts open to interpret, apply and, indeed, develop the law based on the facts of specific cases.

The EU Commission conducted a comprehensive review of the facilitators' package in 2007 and the majority view among member states is that adding a definition of humanitarian assistance would not be helpful in increasing legal certainty. The conduct within the scope of the EU instruments is diverse. Smuggling can take many forms. Conversely, the humanitarian assistance it looks like in specific cases cannot always be envisaged in advance. Attempts to define the term tend to set it either to broadly as to be potentially applicable in any situation, legitimate or otherwise, or too narrowly by listing some factors and not others.

I would also mention in passing that while we are naturally looking at this through an Irish lens, those seeking the protection of the defence might not be based or operating in Ireland. What we might consider clear-cut here is not necessarily so elsewhere. In my view, this is more appropriately dealt with within the facts of individual cases that may come before a court.

Given the breadth of the defence as it is drafted, I do not believe that there is a real risk of an unjustified prosecution and I do not accept that bona fide organisations now find themselves in jeopardy. Similar language has been used in the Illegal Immigrants (Trafficking) Act 2000 and I have not seen any evidence that it has created difficulties for humanitarian organisations. A similar conclusion was reached by the Commission in a 2017 evaluation.

In the circumstances, I cannot accept the amendment.