Alice-Mary Higgins (Independent) | Oireachtas source

This comes down to a very large transfer of responsibility for the policy outcome that we wish to achieve towards the discretion of prosecution. If we believe that as an outcome, persons engaged in humanitarian actions should not be prosecuted for an offence, and if that is what we are hoping will happen, we should reflect that in the legislation rather than hoping that will come out from the process. If, even having removed the for-profit piece, the burden of proof is now to be placed on those being potentially charged with smuggling, as per the briefing from the Department, they should at least be given the opportunity to demonstrate that burden of proof before prosecution, in that they could say they are not committing an offence.

As the Minister of State has said, if there is a political motivation we might still see a prosecution, but that would be a different situation. If a prosecutor is repeatedly prosecuting people for something that has been found to be an offence, that becomes an issue and a pattern can be clearly identified. If a prosecutor chooses to prosecute people despite them having a defence to the offence, and that prosecutor is operating entirely within his or her permitted discretion, there is nothing we can do to address that pattern except to change the law again. That is why I have suggested that if this is how we plan to have it unfold, we need to track what happens with the prosecutions. This is not in terms of individual instances but if we are seeing cases coming up and the Article 9 humanitarian defence is being used - if, by its nature, that is happening in the dock - we will know that the deterrent or chilling effect that the Minister of State believes the humanitarian defence will have on a prosecutor prosecuting humanitarian NGOs is not working. Again, we are leaving a great deal to chance and discretion.

I ask the Minister of State to note our earlier point.This legislation is not happening in a vacuum; it is happening in the context of equivalent similar legislation throughout Europe. Other European countries have had very aggressive prosecutions. I will not detail the cases again, but numerous members of MSF and other NGOs are being prosecuted. The prosecution is not necessarily to achieve a conviction, but to create a financial, social and psychological burden on NGOs. If we go down the route of prosecutorial discretion here in Ireland, we are also setting the template for that to be the model employed in other countries which are transposing the directive into their own laws.

I believe we should have aimed for something better because the jeopardy relating to the chill effect on humanitarian action is greater than the jeopardy regarding prosecutions in the legislation as framed. I regret that the Minister of State will not accept the amendments. I hope he will consider the issue further in the Dáil and look at it in that context.

Unfortunately, we know of such people. We had a member of a refugee appeals tribunal who said "No" to everyone for years and that person was acting within their discretion. This was somebody who effectively gave blanket refusals to everybody. I do not want us to end up in such a situation. That is not about the individuals; they have their discretion. It is about not putting too much into that space. I hope the Minister of State will reflect upon and engage with these issues further in the Dáil.