Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Gabhaim buíochas leis an Seanadóir Harmon a scríobh an Bille agus leis na Seanadóirí eile as labhairt sa díospóireacht inniu. I thank Senator Harmon for going to the effort of putting together this legislation. I commend her and the other Members in her group on using Private Members' time for the purpose of progressing the Bill. As somebody who was a member of the Opposition for many years, I am aware of how precious and useful Private Members' time is. Sometimes, it can be more popularly deployed by putting forward something that is current in the media. I want Senator Harmon and other Senators to know that I think there is huge benefit in their putting forward legislation they have gone to the trouble of drafting. It requires significant work to prepare legislation. I say to Senators and to Members of the Lower House, to use Senator Wilson's term, that, as Minister for Justice, I will carefully read and examine legislation put forward in Private Members' time by Opposition Members that comes under the aegis of the Department of Justice.

It is very clear what the Bill we are discussing seeks to do. As I indicated to Senator Harmon, the Government will not oppose it. I am conscious she and the other Senators who have spoken want to see more than that. They do not want a Minister simply to stand here making virtuous-sounding comments and then for nothing to happen in respect of the proposals in the legislation.

The Bill seeks to create two offences. The first relates to the publishing or distributing of an advertisement that leads to a reasonable inference that engaging in sexual activity may be accepted in lieu of rent. It is commendable that we should seek to create such an offence and that the Oireachtas should seek to enact it. I am conscious of Senator Cathal Byrne's point that we do not want to cover circumstances that are benign and do not come within the very disreputable type of activity we are trying to prohibit in this legislation. It is important to note that a court would have to assess that the behaviour or the advertisement is giving rise to a reasonable inference. In any criminal prosecution, the case must be proved beyond all reasonable doubt. The combination of those two requirements will ensure what Senator Byrne is fearful of may not occur.The second offence is where a landlord or prospective landlord solicits or importunes sexual activity in lieu of rent or a reduction of rent. I suspect that may be even more common than the former, given the fact it is not in a formal advertisement, but somebody seeks to importune a vulnerable person by suggesting the person would get a reduction in rent, or free rent, by providing sexual services. Importantly, the Bill also provides for a defence of innocent publication for third-party publishers or advertisers. That is something that is common in many pieces of criminal justice legislation, and I fully agree with its intention and the protection it will provide.

I wish to share with Senator Harmon and the rest of the Members of the Upper House my thoughts on the Bill, and then I will identify some concerns I have about it. I hope that by indicating those concerns and how I believe there is a lack of precision, Senator Harmon will be able to introduce amendments at some stage to correct it.

The first thing one has to do when looking at legislation is identify what the mischief is one is trying to address. It is clear that what we are seeking to address - and this has been identified by colleagues - is unscrupulous behaviour by landlords who use their advantage to prey on vulnerable people by coercing them into sexual acts in exchange for a place to live. As has been indicated by Senator Harmon, there is very clearly a power imbalance in a circumstance where there is somebody who is desperately keen to try to secure accommodation and a person who has the power of being able to grant secure accommodation.

We are all keenly aware of the issues around the availability of housing and the difficult position people can find themselves in as a result, and this Private Members' Bill seeks to address the seedier side of bad behaviour that can occur when what I suspect is a very small minority of landlords seek to take advantage of the high demand for accommodation. I am, however, aware of the level of distress that such an advance would cause to a tenant or potential tenant. It is instructive that there were so many organisations, such as the Union of Students in Ireland and the National Women's Council of Ireland, indicating that their representative organisations believed that this legislation was important and should be progressed. I also commend Ms Ann Murphy for the excellent work she did in highlighting this problem.

We have identified that there is a clear mischief there, and when we identify a mischief, in most instances the criminal justice system and the Oireachtas should move to try to outlaw and respond to it. I accept that this hurdle has been overcome and we need legislation in respect of this. It is also consistent with the aims of the programme for Government. Senators will be aware that, in the programme for Government, there is a commitment to criminalise those who seek sex in exchange for rent. It aligns with the strong commitment of the Government, and the excellent work that was done by my predecessor, the Minister, Deputy McEntee, to combat domestic and gender-based sexual violence. It was for those reasons that, when the matter of Senator Harmon's Bill came before the Cabinet yesterday, I recommended that it not be opposed on Second Stage. I am pleased to say that that was fully endorsed by other Cabinet members.

While the intention behind the Bill has merit, I have to point out that the Office of the Attorney General has advised that the Bill, in its current form, is not sufficiently precise with regard to the definition of the terms used in it, as well as the parameters of the offence, which the Attorney General advises could lead to unsuccessful prosecutions. I am not saying this for the purpose of trying to communicate bad news to Senator Harmon, but it is important that she be aware of what the concerns of the Office of the Attorney General are. That will then be of assistance to her in seeking to get this Bill through the rest of the Stages in the Seanad and when it comes to Dáil Éireann.

I have to keep my mind open in terms of trying to expedite the process. I am conscious that everyone here wants to try to get legislation that has the effect of what is sought here enacted as soon as possible. One of things I have learned about being a Minister is that legislation takes time. I have tried to expedite legislation as much as possible, but to get legislation approved, I typically have to get a general scheme approved in the Department and by the Government. It then has to go to the Office of the Parliamentary Counsel and the Office of the Attorney General to have it drafted. It then comes back and I get approval for it to be brought to the Dáil. People will say that a Minister can sometimes expedite legislation but, regrettably, legislation generally does not move very fast.

However, I have heard loud and clear what has been said to me by Members of this House in terms of their desire to get this legislation enacted as quickly as possible. I will adopt whatever avenue I think is the fastest for the purpose of getting this legislation adopted. Like me, Senator Harmon is not proprietorial about this legislation. She, like everyone here, just wants to see the provision enacted. Whether it is done through her own Bill or a faster Government Bill, I know that it is Senator Harmon's objective is to get it enacted.

I will identify a few points that have been brought to my attention by the Attorney General that will be of assistance. The Bill states it will apply to a licence or a tenancy of a dwelling. As I understand it, "licence" is defined but "tenancy" is not and it seems that the intention is to provide that the meaning of a tenancy agreement includes a licence within the meaning of the Residential Tenancies Act 2004. However, the provision does not achieve its intended purpose due to the way it is constructed, taking into account that, by their very nature, a licence and a lease or tenancy agreement are different types of arrangements. We need a definition of "tenancy" within it.

Another example of where the Bill could be improved refers to the parameters of the proposed offence of publishing or distributing an advertisement for the purposes of obtaining sex in exchange for rent. The drafting refers to the publication or distribution of an advertisement:

for the letting of a dwelling in terms, circumstances or manner which gives rise to the reasonable inference— (a) that an engaging by the tenant in sexual activity with the landlord may be accepted in lieu of rent [or the rent amount may be reduced] ...

What is unclear from the drafting is how the act of publication can have terms or how an advertisement can have a manner or circumstances.

Another point in respect of precision is that the defence of innocent publication draws from the offence of publishing or distributing an advertisement to obtain sex in exchange for rent. Since what exactly is prohibited is not entirely clear, the defence provision may not be viable in this context. Offence provisions that are impermissibly vague risk being found incompatible with the Constitution, as I am sure Senator Harmon knows. For the provisions in this Bill to be constitutionally sound, I am advised that it would be necessary to more clearly define the precise nature of the conduct that is to be criminalised.

There are also some words or improvements that can be made, and I will put these out there for Senator Harmon's consideration. For example, the Long Title to the Bill uses the term "sexual services", and that term is defined in the interpretation section but it does not appear elsewhere in the Bill. The term "sexual activity", which is not defined, is used instead in key sections of the Bill, so there needs to be a harmonisation between "sexual services" and "sexual activity". As Senators know, it is a fundamental value of the Irish legal and constitutional system that in order to hold people liable for the commission of criminal offences, there has to be precision in terms of what type of activity is prohibited. That is the reason I make that point on the difference between "sexual services" and "sexual activity".

The advice from the Office of the Attorney General is that the Bill needs to be tightened up with regard to its provisions. It needs to be more precise. The last thing we want, I would have thought, is to enact legislation that is not precise enough and will have the effect of making it difficult to secure prosecutions. However, I fundamentally agree with the substance of the Bill. We need to address this appalling and exploitative behaviour. It is unacceptable that someone would abuse his or her position by having access to accommodation and preying on a vulnerable person by seeking to extract sexual services from that person in exchange for accommodation.

I accept the point that it is vague as to whether this is covered in our criminal law at present. It probably is not but we need to emphasise that at the centre of our sexual offences criminal legislation is the fact that there must be consent for any sexual activity. It is clearly the case that somebody has not consented if he or she is being coerced into providing sexual services to secure accommodation. That is something we need to be aware of. This Bill was before the Dáil on two previous occasions. I am not prepared just to make platitudinous virtuous comments commending Senator Harmon and leave it at that. I am seeking to ask the Oireachtas to enact legislation that will prohibit this type of activity. I am early in my term and the Senators will have many opportunities to criticise me legitimately in the future if I am back in the House after a period and it has not been enacted, so they should feel free then to criticise me. I want them to know, however, that I am committed to its enactment. I also have to be careful that we do not have a situation where consensual relationships are in some way affected by this. That is not the intention of the legislation. I must be sure the legislation does not have that effect.

It is part of the programme for Government. It is an essential legislative tool to illustrate that we are extremely serious in Ireland about combating domestic, sexual and gender-based violence. It is something I am committed to acting upon. I must consider what is the best mechanism for me to ensure these provisions are enacted. Is it through Senator Harmon's Bill, which is to go through the Seanad, or is it through stand-alone legislation? That is something I am going to consider, and I will engage with Senator Harmon in respect of it. I do not view myself or the Department of Justice as having a monopoly on good ideas when it comes to the criminal justice system, but I will decide on which I think is going to be most effective in expediting the process.

I refer generally to the importance in my Department of combating domestic, sexual and gender-based violence. As has been mentioned by Senators Byrne and Wilson, the previous Government established Cuan, which played an important role in seeking to combat domestic and gender-based violence. This type of behaviour we are addressing today is a continuation of that. We introduced sexual offences legislation back in 2017. Having been established in legislation, we established Cuan last year. We need to ensure and send out a message that when we see this type of exploitative behaviour, we are going to respond to it. I agree with what Senator Higgins said that simply talking about this is having a beneficial impact. I know everyone in this House wants this legislation enacted as quickly as possible and I am clear on that. Simply by talking about it, raising it and copper-fastening the excellent work Ann Murphy has done in respect of it, we are playing a part in responding to it.