Alice-Mary Higgins (Independent) | Oireachtas source

We could have separated this grouping of amendments, but I am conscious we are constrained by the 90-minute time limit. I agreed to the grouping in that context. The amendments relate to three separate issues. As we discussed at length on Committee Stage, these are the potentially negative consequences of the legislation, which I believe are unintended on the part of the Minister of State and his office. In addition, we are questioning how effective the legislation is in addressing the problem of smuggling it is designed to address.

Amendment No. 1 relates to a core issue we will have to address, which are the rights and protections of smuggled persons. I have highlighted areas of the legislation where there are inadequate protections for the rights of the smuggled person and where the smuggled person, certainly when they are acting in relation to a family member, could inadvertently be subject to prosecution. Crucially, this amendment focuses on the wider picture. We suggest "the steps [that would be taken] to ensure the State has reflected the...Convention relating to the Status of Refugees, including the principle of non-refoulement in all [areas] of...operation of this Act". I am not bringing the convention in; I am aware it is already in law and Ireland is already party to it and is bound by it. The question is how we ensure it is being reflected at all stages.

The reference to the number of cases taken to the European Court of Human Rights and the Court of Justice by persons who have been the object of people smuggling is, again, around the question of human rights. I certainly do not think we should have that very high bar because very few people will be in a position to take cases to the Court of Human Rights or the Court of Justice, but those cases would be a very significant red flag if they were to be taken.

I will focus more on the other amendments. I know my colleague may wish to speak to amendment No. 1 as well. Amendments Nos. 14, 15 and 18 are really about the detail of what happens when we change the law. On amendment No. 14, the rationale for this legislation has been the practical impact of the current laws and the fact there is a perceived difficulty with prosecution in relation to them. This amendment is similarly ensuring we get the law right this time. I am asking for a report on an annual basis showing "the estimated number[s of victims] of human trafficking...the methodology...to produce the estimate and potential alternative methods of estimation...[and] a summary of the outcomes for smuggled persons [who are] identified under this Act, including what proportion of those smuggled persons sought or were granted asylum [or] sought or were granted another form of international protection in the State" and "the number of persons [which is one of the stated purposes of the Bill] found guilty of an offence... and a summary of the sentences imposed".

I will go on to amendment No. 15 because it is not simply about how many people were prosecuted, which is my concern. The Minister of State has said at great length that it is his expectation that those persons who are engaged in humanitarian action will not end up being prosecuted under this Act. He knows I have tabled other amendments where I seek to confirm that by making it clear it is not an offence to engage in humanitarian action, or to act for humanitarian purposes, in the ways outlined under sections 6, 7 and 8. Amendment No. 15, which I hope the Minister of State will accept because it is crucial, is to make sure there is no adverse effect, that is, a potential chilling effect or a stressful prosecution, whereby the burden of proof is moved to the person who is being prosecuted, because that burden of proof is now moving from the prosecutor having to prove criminality. The burden of proof is now being put on a humanitarian actor, which is quite a significant shift.

I ask the Minister of State to lay a report for us detailing how many prosecutions are not pursued due to a humanitarian defence. We spoke at great length on Committee Stage about the scenario the Minister of State, Senator Ward and others see unfolding, which is that where there is a humanitarian defence a prosecution will not be pursued. I am asking if we can track whether that is in fact happening, in addition to the number of prosecutions that are pursued where a humanitarian defence is employed, which is where somebody has gone through the whole process of prosecution, a potential period of imprisonment awaiting trial, periods of having to access legal support, construct a defence and, effectively, having to make that defence in the dock. Then, and this is crucial because it relates to the chilling effect we spoke about, we should track "any impact this Act may have had in respect of the level of engagement of humanitarian organisations in humanitarian activity in respect of smuggled persons".

I will not speak at the same length I have before because we have constraints on time. In summary, Ireland believes that humanitarian search and rescue is a good thing. We directed the national resources of our Naval Service to the humanitarian search and rescue of up to 8,000 people a year because we believed it was a good and not simply that it was acceptable. It was something we channelled our national resources to.The reason given for not continuing with that has simply been that we have not been given support from others in terms of bilateral agreements with other countries on pursuing humanitarian search and rescue. The established position from Ireland has been that we support it.

NGOs and humanitarian actors stepped into the gap. We went from rescuing 8,000 people in one year to 1,300 the next year to almost none the year after. Humanitarian NGOs and civil society organisations have stepped in. They are performing what we consider to be a good. It is very important that our legislation does not work against that good. That is why Part C is important.

I would urge the Minister of State to accept all of these amendments and track the outcomes for smuggled persons. Amendment No. 15 is crucial if we are going to see if this Bill unfolds as he has expressed the hope it will.

Amendment No. 18 combines a few of these issues. It is another approach to the same thing. It combines the question of the outcomes for smuggled persons, including the number that have been identified, those who have sought or have been given any form of international protection and an examination of the chilling effect on the work of humanitarian organisations. It also includes the way in which section 9, the section which presents the humanitarian offence, has been used in decisions whether to prosecute and the impact of this Bill in terms of Ireland's fulfilment of its human rights obligations, including its obligations under the Convention Relating to the Status of Refugees and the European Convention on Human Rights. Maybe amendment No. 18 is even better. I do not know.

Amendment No. 18 combines the principles in amendment No. 14, in terms of the outcomes for smuggled persons, and amendment No. 15, in terms of how the Bill ends up operating and what its effects actually are. My colleague may wish to speak. I would like the Minister of State to indicate whether he is willing to support any of these reports or provide them to the Houses.