Tuesday, 26 February 2008
Criminal Law (Human Trafficking) Bill 2007: Committee Stage.
This is simply a drafting amendment. In the present draft, the Short Title and commencement section is at the beginning of the Bill. Apparently, it is more usual to put such a section at the end as the last section and that is achieved in amendment No. 15, which I commend to the House.
Amendments No. 1 and Nos. 4 to 8, inclusive, are related and may be discussed together by agreement.
Government amendment No. 1:
In page 4, between lines 21 and 22, to insert the following:
""trafficked person" has the meaning assigned to it by section 5(1);".
I will first explain amendments Nos. 1, 5 and 8. Amendment No. 8 is the substantive amendment and amendments Nos. 1 and 5 are consequential. The Minister, Deputy Brian Lenihan, undertook to consider the feasibility of drafting an amendment which would criminalise availing of the services of a trafficked person. Following consultation with the Parliamentary Counsel, which drafted the amendment, it was decided that the most appropriate way to draft it was to use existing terms which were well understood by the courts.
Under section 7 of the Criminal Law (Sexual Offences) Act 1993, it is an offence to solicit or importune in a public place for the purpose of prostitution. Although the expression "solicits or importunes" is not statutorily defined, it has been the subject of case law and is well understood by the courts.
Subsection (1) in the proposed new section 6 creates an offence of soliciting or importuning a trafficked person for the purpose of prostitution. The soliciting can take place anywhere — in public or in private. The person who is solicited can either be the trafficked person or another person, such as a pimp or minder or even the trafficker. No offence can be committed by the trafficked person. The offence can only be committed by the customer even where the customer is another trafficked person. This could happen where, for example, a person trafficked into Ireland for labour exploitation solicited a person who was trafficked for sexual exploitation.
Subsection (2) makes it an offence to accept or agree to accept any type of payment from the person who solicits. Again, this offence does not apply to the trafficked person who has been solicited. Accordingly, under subsections (1) and (2) where a trafficked person is solicited for the purpose of prostitution — in other words, for a sexual purpose — an offence will be committed by the customer, irrespective of whether the customer has been also trafficked, and any person who accepts or agrees to accept any kind of payment in exchange for the prostitution of the trafficked person. In no circumstances can the trafficked person who is solicited commit an offence.
The new section 6(3) sets out the penalties. I am making the offences arrestable in order that the Garda will be in a position to arrest, on the spot, the customer and any person — apart from the trafficked person — who has accepted or agreed to accept payment from the customer for the sexual services of the trafficked person.
The new section 6(4) provides a defence for the customer that he or she did not know, or had no reasonable grounds to believe, the person in respect of whom the offence was committed was trafficked. Such a defence is essential if justice is to be done. The wording is similar to that in an analogous amendment tabled by the Labour Party in the Lower House. It was the latter that gave rise to the tabling of amendment No. 8. Senator Mullen also includes the defence to which I refer in the amendment tabled in his name.
The new section 6(5) makes it clear that this provision is not in substitution for section 7 of the Criminal Law (Sexual Offences) Act 1993. While both sections criminalise soliciting for the purpose of prostitution, there are major differences between them. Under section 7 of the 1993 Act, the soliciting must take place on a street or in some other public place. It is essentially an anti-nuisance provision and does not take a moral stance. The person soliciting can be the prostitute, the customer or a third party such as a pimp. It is a summary offence with modest penalties. The new provision proposed in the amendment is confined to soliciting a trafficked person. The offence can be committed anywhere, including in the types of places — such as a brothel, a hotel room or an apartment — in which a trafficked person is likely to be solicited. The trafficked person cannot commit an offence of soliciting under this section. Both the customer and the person who accepts some form of payment for the service to be provided by the trafficked person can commit an offence. The final significant difference is that the penalties are more severe in this proposal than they are in the 1993 provision.
The new section 6(6) provides definitions. The reason it is necessary to define a trafficked person for the purpose of this section is that the term was only used in the Bill in section 5, which deals with the trafficking of adults. That is also the reason it has been found necessary to make minor drafting changes in sections 2 and 5, as provided for in amendments Nos. 1 and 5, respectively.
The amendments arose as a result of strong and compelling arguments made on Second Stage in this House and during the debate on the Bill in the Lower House. It is clear there was support on all sides for amendments along these lines. It was explained on Second Stage that any amendments would have to be credible. This provision is not merely a decoration in the Bill that is intended as some form of moral judgment or a sigh of disapproval in respect of those who have sex with trafficked persons. It would be bad law and bad practice to create an offence that would be impossible to enforce.
In light of the matters to which I refer, the format used in the amendments is regarded as the one most likely to make a practical difference. It largely applies and extends current laws on soliciting into an area that can be employed specifically to target the users of the sexual services of trafficked persons.
The amendments tabled by the Labour Party and Senator Mullen are based on amendments put down in the Dáil. The latter, in turn, gave rise to the Government amendments to which I have just referred. I am advised by the Parliamentary Counsel that the form of words used in the amendments tabled by Senators is too broad and would prove difficult to prosecute.
By expressing the offence in terms of soliciting for the purpose of prostitution, it would be easier to gain convictions. For example, it would not be necessary to prove in court that the customer actually had sex with the trafficked person. The offence of procuring is already well covered in Irish law. Under the Criminal Law (Amendment) Act 1885, it is an offence to procure any girl or woman to have sex with any other person or persons. Under the same Act, it is an offence to procure any woman or girl to become a prostitute or by threats or intimidation to procure or attempt to procure any woman or girl to have sex. That offence also applies where a person, by false pretences or false representations, procures any woman or girl to have sex. In addition, it is an offence to procure a person for the purposes of sexual exploitation. Senators will agree that the offence of procuring is well catered for under our existing legislation.
I wish to make a final point in respect of criminalising having sex with a trafficked person. If the trafficked person is clearly not consenting to sex, rape might be the appropriate offence with which to charge the customer.
I commend amendments Nos. 1, 5 and 8 to the House. In my opinion, they meet many of the concerns raised in the Lower House and on Second Stage in this House.
I understand what the Minister of State is saying and I acknowledge that his Department has prepared these new amendments in the context of the strong and compelling arguments put forward by Deputies on all sides in the Lower House. My party colleagues in the Dáil raised this matter and, as the Minister of State correctly indicated, the amendment tabled in the names of Labour Senators mirrors that put down in the Lower House. Debate in respect of this matter took place in the Lower House with the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan.
I am willing to accept the Minister of State's comments to the effect that the officials of the Department examined the amendment tabled by Deputy Rabbitte in the Dáil. I have no difficulty saying they have, to some considerable extent, improved on it. This matter was in no way adequately addressed in the Bill, as drafted. However, the Minister of State has now firmly grasped the nettle in that regard. I welcome that development.
There is no doubt about what the Minister of State said regarding the familiarity we have, under our legal code, with the concepts of procurement and soliciting. I do not wish to engage in any self-criticism beyond that which is necessary but the phrase "supplies or avails of the services of" used in our amendment may well have been improved on in the Minister's amendment. We certainly do not wish to include in this important Bill any provision which is compromised in terms of the ability to have it enforced. If the Minister of State, on the basis of the analysis he has carried out, advises the House that the wording now before us is more likely to be amenable to enforcement and that he is confident that convictions are more likely to be obtained in circumstances where the crimes to which he refers are being committed, I am more than willing to accept the Government amendments.
I agree with much of what Senator Alex White said. The key point is to seek, where possible, to obtain convictions. However, I am somewhat concerned about the use of language alluding a reluctance to take a "moral stance". The law has an interest in enforcing morality. It is true that not every issue of morality should be subject to the interests of the law. However, it is certainly the case that most of that which the law seeks to criminalise is immoral. I would, therefore, be concerned if there was any possibility that the proposed new section 6 might bring about a situation where those who avail of the sexual services of trafficked persons might not be penalised.
I would welcome clarification as to whether the phrase "solicits or importunes" leaves open the possibility that a person who walks into a brothel and avails of the sexual services of a trafficked person would be liable to prosecution. I reiterate what I said on Second Stage, namely, that it would be anomalous if victims of trafficking could be potentially viewed as either breaking the law for soliciting or, as provided for under the Immigration, Residence and Protection Bill, being in the country illegally, while those who avail of their services through prostitution would escape criminal liability. Will the Minister of State further clarify the position in respect of this matter?
I welcome the amendment proposed by the Minister of State on behalf of the Government. It goes a long way to allaying my fears regarding concerns that unfortunate women are trafficked and led into a life of prostitution or sexual exploitation. It may not necessarily be prostitution as the exploitation could take the form of other services. There is the view that those who use such people, primarily men although not all the time, are not subject to the full rigours of the law. There is also the view that this area has not been addressed fully.
I understand there appears to be sufficient legislation to take to task and prosecute a person availing of services or using prostitutes. Leaving aside trafficking, prostitutes have been preyed on and used. From my knowledge of the law in this regard, there has historically been a tendency to blame the unfortunate women or prostitutes — it may not necessarily be a woman and could be a male child that is used and abused — and prosecute them in court for soliciting clients and so on. That is the perception of many women groups, which I can understand. Sweden has taken a more robust approach to dealing with the issue by introducing specific legislation to target the people who use, abuse and avail of trafficked women in prostitution, lap dancing clubs or some other type of call-out cases.
I applaud the Minister of State, his officials and the Government for considering the matter sympathetically. This is the first opportunity we have had to deal with such a Bill and it is the first opportunity in a long time that we have had such an open debate, both in the other House and here. As Senator Alex White noted, there is cross-party agreement on the matter and we want to get the legislation as near to perfect as we can. Legislation will always change.
In his response, the Minister of State might further allay our concerns. The Government amendments have come a long way in easing my mind but are there administrative sanctions involved? What do other European countries do in regard to the people who avail of these services, abuse women and take advantage of them? It is appalling to have women trafficked but it is something else to put them into slavery. I will not go into that because I spoke on it with some vigour on Second Stage.
There is clearly a serious concern about this matter. It could be a moral question. Historically, prostitution is one of the oldest trades, almost going back to prehistoric times, before the Roman Empire and before we heard of the stoics and the sophists in Greek philosophy and mythology. It is my perception that women have historically suffered.
The Bill specifically deals with people who are trafficked, be they women, children or young boys. Historically there is a perception that the woman is punished for the crime, which she would normally commit for financial reasons or to deal with a drug habit. In the case of trafficked women there is no choice, as the women are brought here and more or less led into slavery. They would then be abused or taken advantage of for financial gain. In many cases this would be done by serious criminals operating underground, who would also be involved in the drug trade and all sorts of illegal activity.
We should be realistic as the trafficking of women has gone totally underground. It is like a secret operation, as phone numbers would be listed in secret places. It is a cloak and dagger activity. If it was the case that these trafficked women were walking the streets, they would be seen and could in some way be protected by the Garda or others.
In these cases, the specific people who would be affected by this Bill are usually held under lock and key against their will in apartments or back rooms in some houses, where they have no freedom. We must be very clear that the people who use these services should subject to all the moral opprobrium that is necessary and the rigours of the law. That is the reason I am concerned.
I must take due regard of the amendments. The Minister of State might refer to the points I have made. We must get this legislation as close to perfect as possible. There is no utopian legislation and although we sometimes say the law is an ass, we do our best to get it right. Sometimes we make mistakes. I commend the Minister of State for moving legislation that will be as close as possible to what we all consider to be the ideal solution.
Last week in the Seanad, in the presence of the Minister, I stated that trafficking of people — men, women and children — should be treated as a criminal offence. Will the Minister of State develop this further and spell out the current position? How do we compare internationally on this issue? This is a sinister and disgusting underground activity, as Senator O'Donovan indicated. Will the Minister of State provide more information on how we can deal with these people who are utilising trafficked women?
I broadly welcome the amendments as the Bill goes some way towards alleviating the horrific issue of the trafficking of women. We have not gone far enough and we must criminalise the purchase of sexual services. Until we grasp that thorn and deal with that matter fully, we will never fully eliminate the problem of human trafficking.
Various arguments have been put forward with regard to the moral issue and the policing of it. Murders still take place although murder is a crime. We will never have a utopia and it does not exist, nevertheless, we must ensure our legislation is as perfect as possible. Until we get to that stage there will be a lacuna and a gaping hole in our legislation that discriminates against women and children.
There have been a few points raised and I welcome all the Senators' positive comments in regard to the amendments which have been moved. All of us have the same purpose, which is to deal with this horrendous activity of people who traffick human beings and have them involved in prostitution. It is totally unacceptable. What I stated at the outset was reflected by everybody else. We want to ensure our legal system will be able to secure prosecutions and criminal convictions for those who are involved.
I hope I have taken Senator Mullen's question correctly when he asked would a person walking into a brothel and availing of the services of a prostitute commit an offence. I am satisfied an offence would be committed as in these circumstances some form of payment would be exchanged.
Some of the many issues raised by Senator O'Donovan are pertinent to some of the later amendments we will discuss. The law on prostitution provides that the client may be prosecuted. I understand clients are regularly brought before the courts for soliciting.
With regard to the comments of Senators Mary M. White and Lisa McDonald, we all want to address the expressions of concern outlined in this House by Senators on Second Stage and the issues discussed by Members on all sides in Dáil Éireann. Our legal advisers in the Department, the Office of the Attorney General and the Parliamentary Counsel have given this the utmost consideration. The counsel advises strongly that the form of words in these amendments is too broad and crude and that they would be difficult to prosecute. By expressing the offence in terms of soliciting for the purpose of prostitution it will be easier to gain convictions, which is what we want. There is no point in having law that cannot be implemented or cannot achieve the desired outcome. Everyone in this House wants robust legislation to protect people and to have a legislative framework in place to enable us to convict people who are guilty of crime, as this legislation provides.
Our law covers the offence of procuring. It is an offence under the Criminal Law (Amendment) Act 1885 to procure any girl or woman to have sex with any other person or persons. Under the same Act it is an offence to procure any woman or girl to become a prostitute or by threats or intimidation to procure or attempt to procure any woman or girl to have sex. That also applies where a person by false pretences or representations procures any woman or girl to have sex. In addition, it is an offence to procure a person for the purpose of sexual exploitation.
Subsection (1) of our proposed new section 6 creates an offence of soliciting or importuning a trafficked person for the purpose of prostitution. The soliciting can take place anywhere in public or private. Senator O'Donovan referred to that in particular. The person solicited can be either the trafficked person or another, such as a pimp, minder or trafficker. The trafficked person can commit no offence. Only the customer can commit an offence, even where the customer is another trafficked person. This could happen where, for example, a person trafficked into Ireland for labour exploitation solicited a person who was trafficked for sexual exploitation. We must ensure the legislation is robust, has the safeguards and the wherewithal to effect prosecutions where necessary and have criminal prosecutions in place. I strongly commend this amendment to the House. All the contributions to the debate reflect that position.
The more I read the Government's proposed section 6, the more I wonder. The intent behind the discussion that took place on this matter in the Dáil and the Minister's proposal on Second Stage that we come back with suggestions on whether those who used or availed of the sexual services of trafficked persons should be criminalised was to reduce trafficking by creating a serious disincentive for anyone who might use or avail of the services of a trafficked person. While I agree with the Minister of State about the desirability of securing convictions and of matters being enforceable, the law operates as an educator too. Even where the offence would be declaratory and it would be difficult to get a conviction, that would be valuable.
Does the Government's wording in its proposed section 6, "for the purposes of the prostitution of a trafficked person", imply that for a person to be criminally liable for availing of the sexual services of a trafficked person, he or she must have intended to prostitute a trafficked person? If so, where is the disincentive because one wants to fire a warning shot across the bows of potential users of prostitutes by establishing that if the prostitute turns out to be a trafficked person, the user will have committed a criminal offence. I do not care if that is sometimes difficult to prosecute because we are trying to create a serious disincentive.
We spoke on Second Stage about the potential anomaly that a victim of trafficking could be prosecuted under this or other Bills but that a person who avails of his or her services might not be. Will the Minister of State bring forward an amended version of this proposed new section on Report Stage to clarify that, regardless of whether the person who availed of the sexual services of the trafficked person knew the person was trafficked, or intended to prostitute a trafficked person, that person will be liable to criminal prosecution for using the sexual services of a trafficked person? My amendment No. 9 covers that situation and more.
Before and after the Second Stage debate in this House the Department, the Parliamentary Counsel and the Office of the Attorney General considered this matter. The robust advice to us is that our amendment will deal with the issue in the most comprehensive way. We all want to achieve the elimination of such behaviour, if possible, or to minimise it to the greatest extent possible. A threat of prosecution will never equal the reality of effecting prosecution and ensuring the person involved would be criminalised. Threats do not always work. Introducing a criminal offence for educational purposes would not be the best of law in any circumstances. I do not have any legal training but offences must be such that they can be prosecuted.
In most people's terms offences should lead to prosecutions. The Government amendment provides the best way to ensure we reach prosecution stage and it must be enforceable.
Last week I heard a young woman on the radio speak about working in a lap-dancing club. On the surface lap-dancing clubs can seem frivolous and not exploitative. This girl said, however, that young women who work in many clubs must pay to work and that after a certain age they are disposable. I was shocked. I have no personal experience of this. The girl said she was 26 and that if she kept fit she would have a few more years left. That is repulsive. These are not necessarily trafficked women but in our society women are being treated as disposable objects. It is insulting to every woman in the world that men would treat a woman that way and that she must be a certain age.
While the average lay person is unfamiliar with the reality underlying such issues, it is frightening when one learns of it.
I move amendment No. 2:
In page 4, before section 3, to insert the following new section:
3.—The Minister shall promulgate a code of victim's rights in respect of victims of trafficking which shall address the following issues:
(a) protection of private life of victims;
(b) appropriate medical assistance to victims;
(c) secure accommodation;
(d) recovery and reflection period (minimum 3 months);
(e) temporary residence permit (minimum 6 months);
(f) translation and interpretation facilities where necessary;
(g) access to counselling and information services, in particular, as regards legal rights, in a language that can be understood;
(h) access to legal aid;
(i) right of access to education for children;
(j) right to access social welfare benefits as necessary;
(k) voluntary repatriation and return of victims;
(l) facilitating access to the asylum process;
(m) special protection measures for child victims;
(n) family reunification;
(o) right to work;
(p) right to access vocational training and education; and
(q) compensation and facilitating legal redress against traffickers.".
This amendment is based on amendments that were tabled in the Dáil previously by Deputy Pat Rabbitte. The only difference between my amendment proposing a new section 3 and that tabled by the Labour Party relates to subsection (d), in which the Labour Party amendment proposes a recovery and reflection period of a minimum of 30 days whereas I propose a recovery and reflection period of a minimum of three months.
This amendment is concerned with recognising that victims of trafficking form a special category of persons. Such people are highly vulnerable and while those who traffick them may be subject to the criminal law, this does not address the question of the particular needs of trafficking victims. Therefore, it is appropriate that this Bill should comprehend effectively a victims' rights charter for the protection of such persons. This can be considered to be similar to the directive principles of social policy in the Constitution, which basically set out values to be aspired towards and achieved for the sake of particular persons. A panoply of needs is dealt with in the amendment, including protection of the private lives of victims, appropriate medical assistance and secure accommodation. Members should imagine a person who may have been brought in from within or without the EU. Such a person may not speak the language of the host country, may have been physically or sexually assaulted, coerced and deceived or may not have any friends to call on in the country. Effectively, people in this position are in a form of modern slavery. Consequently it is incumbent on Members to reach out in legislation by setting out specifically the protections and supports that will be available to them.
I note the Minister stated that such matters would be dealt with in the Immigration, Residence and Protection Bill. However, that Bill relates only to the recovery and reflection period and to temporary residence status. Moreover, because it is an immigration Bill, these provisions will apply only to trafficked persons who come from outside the EU or the European economic area, EEA. However, Members are aware that trafficking of persons can involve persons from within the EU. Moreover, persons who come from those parts of the EU that do not enjoy freedom of movement within the EU, such as Bulgaria or Romania, will be even worse off than those coming from outside the EU or the EEA, who at least will receive some limited benefits under the proposed immigration legislation.
It is appropriate to set out the protections in this Bill categorically and in depth. While this proposal was rejected in the Dáil, I ask that it be accepted in this House. I again stress that if this Bill pertains only to the criminalisation of the trafficker and does nothing to address the practical personal needs of the trafficked person, I fail to see how Ireland is complying with the spirit of its international commitments.
I agree wholeheartedly with Senator Mullen's contribution. I have heard the argument made and have noted the Minister has made statements in the Dáil and elsewhere to the effect that essentially, this Bill was a piece of criminal legislation and was not an appropriate place in which to deal with such measures. Perhaps the Minister of State will respond to Members in due course in this manner. However, it is entirely appropriate that in addition to introducing the measures in the Bill, one should have serious regard to the plight of victims of trafficking. It would be extraordinary were Members simply to state this was a matter for another day, because it should be dealt with and confronted in this debate and measures should be introduced to deal with the effects of trafficking on the affected individuals. This Bill does not so do and it is neither sufficient nor acceptable for the Government to state the matter will be addressed on another day or in another place.
Senator Mullen's point is correct and I await with interest the Minister of State's response in this regard. I understood the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, to state that those issues ought properly to be dealt with in the immigration legislation. However, as has been correctly pointed out and as Members are aware, that legislation only deals with and comprehends immigration from countries outside the EEA. Even from anecdotal evidence, Members are aware that a great proportion of trafficking in this context is taking place from other countries within the European Union. Therefore the victims of trafficking, largely young women, from east European countries within the European Union will not have their rights dealt with in legislation at all, in so far as Members are aware. This is not acceptable in the context of the legislation before the House.
The Labour Party has congratulated the Minister on introducing this legislation and has commended the Government for so doing. However, Labour Party members are not satisfied that such a serious gap will be left in Ireland's approach to this extremely serious phenomenon of trafficking. I await the Minister of State's comments regarding the vital importance and necessity of addressing all the issues set out from subsection (a) to subsection (q) in Senator Mullen's proposed amendment, as well as in the almost identical amendment tabled by the Labour Party Members. I refer to issues such as the protection of victims, an adequate meaningful period of recovery and reflection and access to legal aid. While the Minister of State may assert that a legal aid system is in place, why not incorporate into this legislation and regime a reaffirmation of the rights that victims of necessity must have in the context of dealing with trafficking? Many of the amendment's proposals, including the right of access to education for children of victims, social welfare benefits and so on, as well as voluntary repatriation and return of victims have been drawn from existing international instruments with which Members are familiar. Members cannot turn their backs on this vital aspect of the trafficking phenomenon and leave it for another day.
Senator Mullen's proposed section 3(d) calls for a longer period of recovery and reflection and on reflection I am prepared to support his advocacy of a longer period in circumstances where 30 days, which is the timeframe in amendment No. 3, which I tabled, seems to be a little less than generous.
I can see clearly where my colleagues, Senators Mullen and Alex White, are coming from. The Labour Party amendment and Senator Mullen's amendment are almost identical in their drafting. I fully concur with the sentiments expressed. I made the point forcefully on Second Stage that people who are trafficked here, particularly for sexual or other exploitation which is akin to slavery, must be assisted in every way possible. I quoted from a survey carried out in various countries, particularly in Canada, where the approach taken was that the trafficked person when detected was sent back to his or her country of origin, which compounded the difficulties and problems he or she experienced. I expressed clearly my wish that we should take a more humane attitude in such circumstances and that, hopefully, we would learn from the mistakes of other countries.
I chaired a committee that dealt with the removal of a judge from office. I took great interest in way the Canadians dealt with such a matter. It dealt with 11 such instances. Its experience of dealing with them provoked a better understanding of how such a matter could be dealt with here.
What is proposed in the amendments tabled by Senator Mullen and the Labour Party is a type of charter of rights. I have some reservations in that respect and question if it is appropriate, in this and other legislation dealing with asylum seekers or migrants to Ireland or other member states of the European Union, that we should provide a charter of rights for different groups of people?
A proposal to introduce an EU constitution, put forward to Ireland and other member states of the European Union, floundered because some member states rejected it. We will now be asked to vote on its replacement, namely the Lisbon treaty, in a few months' time. I have advocated and support that, within Europe under the Lisbon treaty, we would have a uniform way of dealing with refugee status, asylum seekers and the movement of people. The movement of people to Europe is similar to the movement of people to United States and Australia in the past. Such movement at a particular time can constitute an 8% or 10% increase in the influx of people.
The trafficking of women to Ireland was not an issue 20 years ago or even ten years ago. Statistics show that fewer than 90 women are alleged to be have been trafficked here for sexual exploitation or otherwise. I must be careful in using the word "women" because, while the majority of those trafficked are women, they are not all women. We do not have a history of such trafficking. I am not in any way pouring cold water on what my good colleagues Senator Alex White and Senator Mullen said. I have great empathy with the points they raised but I am not sure if the inclusion of a mechanism in this Bill to provide a charter of rights in this regard alone is appropriate, without having regard to the European Union and our obligations within an enlarged Union, which possibly can be dealt with by the so-called EU constitution in terms of the Lisbon treaty to be voted on by the Irish people. While I envisage difficulties with the proposal, there is great merit in it. I will be interested to hear the Minister of State's response.
I am pleased my constituency colleague, the Minister of State, Deputy Smith, is present to deal with this legislation. I welcome him to the House.
On behalf of the Fine Gael Party, I join Senator Alex White in welcoming this legislation. Second Stage has been dealt with and I do not propose to make a Second Stage speech, other than to cursorily state — as I did not participate in the Second Stage debate — that I unequivocally and wholeheartedly welcome the legislation. It is timely, appropriate and most necessary.
We could never ever in any form of words, regardless of the form of words or prose, convey the horror of human trafficking in all its intensity. It is a horror, base, uncivilised, inhuman and beyond contempt and acceptance. The legislation must be viewed in those terms.
I support and commend the amendments to the Minister of State and the Government on the grounds that they seek merely to deal with the condition of the unfortunate victim after the event. When the victim has been found and released from such horrendous captivity, mechanisms enshrined in legislation should be in place to assist the victim through a process of recovery. God knows for many of them the most effective help probably would be for them to be returned to their homeland as soon as possible, and in such instances, that should be facilitated. However, if the most effective assistance is for them to remain here, that also should be facilitated in terms of their requirements, be it education, accommodation, orientation or counselling. I do not propose, in the interests of dealing with legislation efficiently, to recite every subsection of the amendments because they are on the record. I see no merit in doing that other than to appeal to the Minister of State to incorporate the amendments. I take the point that future legislation might deal with these proposals.
I approach this matter — as the Minister of State humbly said he did — without legal training, without formal, professional legal training, although I have studied some law. I approach this matter without the formal training Senator O'Donovan would bring to his approach to it. From a lay perspective and having read some law, it appears it is not outside the spirit of the legislation or practicality in terms of its implementation to incorporate in it a recuperative, rehabilitative and readjustment process for the victims of this horrendous crime.
I support the amendments on those grounds. If they can be incorporated — I see no reason they cannot — they should be. I am sure no Member on any side of the House in a civilised society would aspire to a position where such provisions would not be made. No Member of the House would contemplate or wish a world where such crime would be suffered by a victim. Why can we not enshrine these provisions in legislation and in that way be true to our Christian ethos as a society? These provisions are worthy of enshrinement in the legislation and I fail to understand how that would conflict with the spirit or the enactment of the legislation. However, I bow to the knowledge of people who are professionally trained in this sphere but I cannot see the conflict.
I commend the amendments. The Bill is right, as are the fines. It is very important that the Oireachtas legislates for disincentives and an attack on human trafficking. Everything associated with human trafficking is alien to our culture and to everything indigenous to the true national spirit of Ireland and to the record of our missionary priests in the developing world. It is at variance with all this and it is a horror. I suggest the Government join in enshrining custodial sentences and fines and be extra affirmative by giving legislative effect to putting a process in place to deal with the victims.
There seems to be cross-party support for the broad thrust of Senator Mullen's amendments. As other speakers have said, there does not seem to be anything wrong with including the proposals in the legislation. To wait for future legislation in order to enshrine the principles on which we agree appears to me to be somewhat kicking to touch or putting it back to a different issue which could never fully address the issues pertaining to this matter. It is known that many of the trafficked women coming to this country are from eastern European countries which are in the European Union. I do not know how the Immigration Bill will deal with this fact and I would be interested to hear the Minister of State's comments. The matter of temporary residence should be included in the Bill.
With regard to the protection of victims, the Minister stated last week that the full services of the State will be available to victims. In that case, victims' rights should be enshrined in this legislation. I refer to drug rehabilitation programmes and other rehabilitation programmes which are enshrined in legislation. Even those who have committed crimes are given help to put them on the road to recovery. It may be due to a lack of understanding of what the women who are caught up in sexual trafficking endure that this provision is not in the Bill. We have never experienced it and therefore cannot be expected to know how difficult it is to get oneself back on the road. I have listened to victims and I have spoken to people in Ruhama and we must give them the benefit of the doubt and believe what they are saying, that it is incredibly difficult. The victims of this heinous practice must be given full protection.
I thank all Senators for their contributions. The House will recall that during Second Stage the comprehensive strategy which has been put in place to ensure that Ireland will be in a position to ratify the Council of Europe convention against trafficking in persons, was explained in detail and a number of Senators referred to the question of how our international obligations would be met. To ratify the convention will require enactment of the criminal law provisions of the convention as provided for in this legislation. An enactment of the immigration issues which are provided for in the Immigration, Residence and Protection Bill. The convention also obliges State parties to provide for the protection of victims and the provision of services to them. I have concentrated the arguments to date on the policy initiatives underpinning the holistic approach we are pursuing in the challenge we face in breaking up the trafficking gangs who prey on the desperation and hopes of persons in underdeveloped countries. Central to this approach is putting the traffickers out of business and behind bars. Therefore we must take care to include nothing in the legislation that would allow the traffickers to escape justice, the law of unintended consequences, as it is sometimes known.
As an example of how well-meaning statutory provisions aimed at supporting victims of trafficking could cause problems, I refer to the observations of the Irish Human Rights Commission on the general scheme of the Criminal Law (Trafficking in Persons and Sexual Offences) Bill, from which the trafficking provisions of this Bill have been extracted. It is important to recall these comments of the Irish Human Rights Commission:
The provision of explicit rights for victims in a prosecutorial statute may potentially be characterised as an inducement to give evidence, thus possibly undermining the case for the prosecution. Where certain rights and privileges are extended to victims conditional on co-operation with a police investigation and-or prosecution, a plausible defence may be mounted to the effect that the victim has been incentivised to give evidence. This may, in turn, diminish the impact of such evidence.
In other words, we must also be aware of the legal implications of our actions. This is not an academic or theoretical issue.
In the case of the Director of Public Prosecutions v. Gilligan, the Supreme Court considered whether evidence given by persons in the analogous position of being on a witness protection programme, could be admitted in court. While the court ruled that such evidence was admissible, a note of caution was nonetheless entered in respect of evidence from such persons. Such an approach reflects concern for due process, for the presumption of innocence and for a fair trial.
In the USA, victims of trafficking can avail of special visas which permit temporary residence while co-operating with police investigations. It has been reported that perpetrators had claimed or tried to claim a defence of unlawful or improper incentive arising from the grant of the visas and there were some acquittals on that particular ground.
It is clear that great care must be taken when providing for the residency of alleged victims of trafficking and the services provided to them while availing of those rights. This is the reason it was advisable to have given the utmost consideration as to how the residency issues would be dealt with in the Immigration, Residence and Protection Bill and to have sought the best legal advice. Similar care will need to be taken when providing for the administrative services that will be made available to alleged victims. It is no accident that these can be provided administratively in order to comply with the Council of Europe convention but we are required to provide them and if we were to fail in that respect, we could not ratify the convention and this would be at variance with Government policy. I assure the House the convention will be ratified.
The high level group to which I previously referred will draw up the national action plan on trafficking and this will be implemented by the relevant Departments and agencies which have representation at senior official level on that group. The establishment of an anti-trafficking unit within the Department of Justice, Equality and Law Reform, which is exclusively dedicated to co-ordinating and facilitating a new national strategy to address human trafficking, was recently announced. A competition for the post of executive director of the unit was held and a successful candidate has been appointed and has taken up office. The director has made it clear that she will be working with both governmental and non-governmental agencies in developing and implementing a comprehensive strategy to prevent trafficking, prosecute traffickers and protect victims.
I am satisfied that our approach to the challenges posed by trafficking in human beings is the correct one and that it adequately addresses those challenges, both from the point of view of assisting victims and getting convictions in court.
I can appreciate the concern for victims which has been voiced by all of us but at this stage we ask to be judged on the outcome of the strategy to deal with the problem in a holistic and fully considered manner. Both of the amendments tabled by Senator Mullen and by the Labour Party provide for periods of reflection and recovery as well as temporary residence. These are dealt with in the Immigration, Residence and Protection Bill which has gone through Second Stage in the Dáil and will be consequently coming to this House for a full debate.
A number of the issues raised by Members concerned our international obligations which I assure the House we are meeting and we will be in a position to sign the European convention. The national action plan to be drawn up will have widespread representation including the Department of Justice, Equality and Law Reform, the Irish Naturalisation and Immigration Service, the Garda Síochána, the executive director of the new anti-trafficking unit in the Department, the office of the Minister of State with responsibility for children, the Department of Enterprise, Trade and Employment, the Department of Health and Children and the Health Service Executive. This high-level group would importantly bring on board as appropriate new members from other offices and agencies that have a contribution to make to ensure the response of the State is co-ordinated and comprehensive. The group will decide on the most appropriate way to engage constructively with the non-governmental organisations.
Some of the groups that work with women have been mentioned here. We appreciate their contribution and that of many individuals, interested parties and advocacy groups that we have met in recent times. We appreciate their input that will be given the attention it deserves within the high-level interdepartmental group. Many of those individuals who are working with the victims of this awful behaviour are very well aware of the needs of those particular victims. We want to call all those groups in the non-governmental organisation community and put them under that umbrella. They will have an important role to play in that regard and also in the provision of services.
Legislation is often passed without having the follow-up implementation plans, policies or resources in place to deal with the issues. Senators will note from my comments that the new executive has been appointed. That unit will be particularly important. The high-level interdepartmental group has a vital role to play in drawing up the national action plan. All those measures are under way already and they will deal with important issues. It is important to have them in place in advance of the legislation being passed. That shows clearly the intent of the Government and of all of us as parliamentarians to achieve the desired result and put in place adequate services for victims.
At the outset of the discussion on these amendments it was mentioned that where there are no immigration issues the persons trafficked into Ireland would be protected under the national action plan, which is being drawn up by the high-level group. If those people come from within the European Union, they have a right of residency. The national action plan has been drawn up under the European Union directive on trafficking. What we are doing is in accordance with what is permitted under the Council of Europe convention. From my comments, Senators will note that the international obligations, mentioned by most contributors, are being met.
While I thank the Minister of State for his response, I am unconvinced by much of what he has said. Reference was made to the Human Rights Commission's concern that in criminal legislation there might be some kind of incentivising of trafficked persons to give evidence in such a way as might — I think what is being suggested — bring into question the possibility of a fair trial or that the person being accused of trafficking might be able to claim that the process had been corrupted. I do not believe any of this arises. There is no suggestion of conditionality in either my proposed amendment or that of the Labour Party. I will defer to Senator Alex White who is a barrister of much more experience than I am.
What is being proposed is a code of victims' rights in respect of victims of trafficking. If anything that seems to suggest that it having been established that a person was a victim of trafficking, which would seem to imply that the business of prosecuting the trafficker had already been taken care of or was well in hand, the person who is known to be a victim of trafficking would be entitled to avail of the benefits as set out in paragraphs (a) to (q). As there is no conditionality there can be no question of the matter which was of concern to the Human Rights Commission arising. There is no suggestion that these rights are conditional on assistance being given by victims of trafficking to the process of prosecution or investigating offences and prosecuting them.
To some degree we are dealing with the curse of the party Whip system. I note that Deputy Shatter wrote a letter to The Irish Times to this effect yesterday. I am convinced of the sincerity of my colleagues across the floor in Fianna Fáil. I have been impressed by the speeches on both Second Stage and Committee Stage of Senators O'Donovan, Mary White and McDonald. Yet there appears to be no give from the Government. We are getting responses to our proposals which are about parrying our proposals and not on the basis of very strong argument.
I welcome the high-level group and encourage its work. I am pleased that NGOs are involved in its work. However, we have not heard any consistent, comprehensive, coherent or persuasive argument for not including either my amendment or that of Senator Alex White and the Labour Party.
Once again I find myself in full agreement with Senator Mullen's comments on his amendment, which is more or less identical to the one proposed by my party. I am perplexed by some of the arguments put forward by the Minister of State on this occasion. Not only I am entirely unconvinced by them, but also they raise other questions in my mind. The Minister of State is right in saying we need an holistic approach to the issue. If we are to have a holistic response as he advocates, how can we ignore the question of victims? How can it be a holistic response, such as he is advocating, if we set that aside, for the purpose of this legislation? I accept he has said it will be addressed in other ways and is not saying that it is not relevant. As an earnest of our intentions as legislators and as an earnest of the Government's commitment to this question and the holistic approach the Minister of State advocates, I cannot understand the attitude he has taken to this proposal.
I note what Senator McDonald said. While I do not want to paraphrase her, what she said made great sense. She said that if we all agree these are issues that need to be addressed it is somewhat begrudging — that was not the Senator's word — that we should leave ourselves open to the accusation of paying lip service to the question of victims and not incorporate it in the legislation. Of course the Minister of State is right to say that the fundamental objective of the legislation is to attack the problem by breaking up the gang and not allowing offenders to go free. It is a criminal statute and that is its central objective, on which I agree with him. However, I find perplexing the notion that we go from that point to this strange argument — which needs to be addressed again by the Minister of State — that protections we put into legislation for victims could in some way arguably undermine the intention of legislation or could take from it in some way.
I again draw attention to the amendment, which states: "The Minister shall promulgate a code of victim's rights in respect of victims of trafficking which shall address the following issues:...", followed by a list of categories of matters that should be addressed in promulgating such a code. There are plenty of occasions in legislation where a Minister is enabled to introduce a code of conduct to include under one provision all of these important areas we all agree need to be addressed. For the life of me, I cannot see what the problem is with inserting an enabling provision in this Bill allowing the Minister of the day to introduce a code to address each and every one of these questions. The amendment simply says that the code should address the following issues. It is not absolutely prescriptive as to what precisely the Minister should have in the code. It allows quite a considerable degree of freedom to the Minister as to how precisely he or she would provide for these different questions. It is therefore not a provision that ties the Minister's hands in any respect. I cannot understand how the Supreme Court's strictures in the Gilligan case, and the risks associated with the evidence of persons in witness protection programmes, are being transported into this debate. I do not see where they belong because each of these proposals is a humanitarian provision in respect of human needs. As Senator Mullen correctly said, it is not remotely suggested that extending any of these rights or protections is contingent upon co-operation in criminal prosecutions. I do not understand this linkage. With all due respect to the Minister of State, it looks like a red herring to introduce the Gilligan argument in respect of a possible undermining of prosecutions. I simply cannot see it.
The Minister of State made the point, fairly, in respect of a national action plan but he did not address the question concerning the Immigration Bill's remit. I interpret his silence on the issue as an agreement to the unanswerable proposition that one cannot deal comprehensively with the rights of human trafficking victims in the Immigration Bill because that legislation provides for immigration from outside the EEA, while we have this phenomenon within the EEA. Therefore I will interpret the Minister of State's silence on the question as meaning that we are right in that regard. Manifestly there is a gap in respect of this matter. If the Minister and the Government want to be holistic I see no reason this amendment cannot be accepted. The Minister of State's argument, that great care needs to be taken on what precise rights and protections are extended to victims, is not one against having rights and protections. It is an argument that we should exercise care as to what those rights and protections ought to be, but it is not an argument against having such rights and protections.
I note the Minister of State's response but I have deep reservations, as other Senators do. I ask him to reflect on this matter before Report Stage with the Minister, Deputy Brian Lenihan, and the departmental officials. The Minister of State will have an opportunity to do so over the coming week.
I am unclear in my mind about this issue. The amendments tabled by the Labour Party and by Senator Mullen suggest a charter of rights for victims of human trafficking. While the concept is laudable, I am not sure whether it can be dealt with practically within our domestic legislation as opposed to dealing with it as a whole within the European Convention on Human Rights. While not wishing to detract from the strength of the arguments of my colleagues on the Opposition side, is there currently a charter of rights for crime victims? I fear not. Although we hear much about the rights of the criminal, we must espouse the rights of victims of assault, burglary and other offences.
I am unclear about this argument, however, and if the Minister of State is not in a position to answer my questions, perhaps he can reflect not alone on amendments Nos. 2 and 3 but also on the concepts I have raised. If this refers to a charter of rights, is it appropriate to have such a charter in every specific piece of legislation dealing with whatever circumstances? In addition, does it transgress the notion we should have anyway within domestic and European law of a general charter of rights for victims? I can imagine a hue and cry being made because we are providing for a very specific set of victims. While I am not saying it is wrong, one must be careful and heed the old Latin maxim inclusio unius est exclusio alterius, that by including one thing, one can exclude alternatives.
I urge caution but unfortunately I do not have all the answers. I am teasing out the issue, which is the purpose of debates such as this. I understand that we are not taking Report and Final Stages this week, so before concluding our work on the Bill perhaps a more serious and in-depth analysis can be made of the points raised and amendments moved concerning the general area of a charter of rights for victims of human trafficking.
While I agree with my colleagues on the Government side, I laud the amendments moved by Senator Alex White and Senator Rónán Mullen. Having participated with the CORI group, the Sisters of Charity and Ruhama, I feel we owe it to them to put more time into this. The Minister of State sorted out the child care subvention scheme.
This issue is really a matter of life or death. It is below the surface and we do not meet it every day. As legislators, we have a serious responsibility to educate, as Senator Mullen said. If it is taken as a serious offence to be a client in such a situation, they must get the message that it is not acceptable in Ireland. We must provide a good example and do it in our own unique way. We do not have to be bound by any other countries' methods. Irish missionaries have worked in Africa to bring people out of poverty and destitution. I feel I have an obligation to all the priests and nuns who are doing stellar work in combating the terribly murky area of human trafficking. The Minister for Justice, Equality and Law Reform should examine these amendments more closely because they are good.
Senator Mary White rightly stated that our objective must be to communicate the message that such behaviour is not acceptable in this State. One way of ensuring it is not acceptable is to have a body of legislation in place that allows us to criminalise and prosecute those who abuse others in this way.
Senator Mullen remarked that he appreciated the sincerity of certain individuals on this issue. I hope he is not implying by omission that there is not the same sincerity on the part of the Government.
I will not be offended if the Senator does not include me in any roll call. However, I wish to put on record that the Government is sincere and determined in its objective to get this legislation right. We do not have to accept comments from any individual in regard to who is sincere and who is not. We are putting this legislation through the House and we are also putting in place the services to deal with this issue. I was disappointed that Senator Mullen, whether by implication or inadvertently, seemed to omit certain people who were in the Chamber at the time he made those comments.
No, Senator Mullen referred to "sincerity". There is no doubt about the sincerity of the people who spoke. Nor is there any doubt about my sincerity as I speak on behalf of the Government today. I wish to state that clearly.
I make that statement personally and on behalf of every member of the Government. That must be put clearly on the record.
We will not ignore the observations of the Irish Human Rights Commission. It seems those observations are quoted here at length only when it suits people. The amendments tabled by Senator Alex White and his colleagues in the Labour Party and by Senator Mullen, respectively, are essentially enabling provisions. I could easily accept these amendments and do nothing for the time being. Our objective, however, is to get on with providing the necessary protections and services to help those people who have been or will be victims. That is the reality.
If I remember correctly, Senator Alex White spoke critically about enabling provisions on Second Stage. I hope I am not misrepresenting the Senator but it is my recollection that he contended that enabling provisions are of little benefit if the follow-up services and regulations are not put in place.
Senator Alex White spoke about the need for an holistic approach. The reality is that this Bill is part of exactly such an approach. The Immigration, Residence and Protection Bill 2008 and the national action plan are equally important measures. "Holistic" does not mean providing all the necessary protection services in one Bill.
Senator Alex White also referred to victims' rights. It was never intended to deal comprehensively with victims' rights in the Immigration, Residence and Protection Bill 2008. Rather, it was always the intention that they be included in the national action plan. My understanding is that this position was outlined clearly from the beginning. Work is under way on the national action plan and we are determined to ensure all the provisions and measures included therein are correct. Senior civil servants and representatives of groups with a particular interest in this area are working together to draw up those measures. This process will be given the utmost attention.
On the question of a charter of rights for victims, my understanding is that such a charter exists but is non-statutory. That charter is currently being revised.
I do not want to add to the Minister of State's discomfiture in respect of this discussion, but it is lamentable that he has not properly addressed the issue put to him by Members on both sides of the House in terms of what is right and what ought to be done in regard to the provision to be made to protect victims. On enabling provisions in legislation, I stated on Second Stage what has always been my view, namely, that there is sometimes an over-reliance on such provisions when it would be more proper to include the detail of the provision in the legislation itself. However, this is not an argument that one should not make these provisions at all. If the Minister of State wants to go further than what we are proposing, which is an enabling provision, I will certainly be prepared to support an amendment he might bring forward to copperfasten what we are suggesting within the legislation itself. What we propose, and what the organisations the Minister of State is correctly so quick to praise seek, is for the question of victims' rights to be addressed in the legislation.
I am disappointed at the Minister of State's response. I did not hear anybody question his sincerity. We can disagree with people while still accepting their sincerity. I assumed it was a given in this business that we all understood and respected each other's sincerity without having to say so explicitly on each occasion. I do not doubt the sincerity of the Minister of State or that of any Member on either side of the House, but that does not stop me from disagreeing with some of them. The Minister of State has got it wrong on this issue.
I fully accept Senator Alex White's assurance that he does not doubt our sincerity. However, I emphasise that the Government wishes to ensure that we get this legislation right so we can deal with the issues that every Member of the Oireachtas and society in general wants to see addressed. It is often a feature of our parliamentary procedures that legislation is enacted but the relevant regulations do not come into place for many years. As a result, the consequential establishment of boards or services to achieve the desired outcome do not follow on as quickly as they should.
In dealing with this reality, we are taking the holistic approach advocated by Senator Alex White. We have established an executive office within the Department of Justice, Equality and Law Reform and a senior civil servant has been appointed as director. The work of that office is under way. Work is ongoing on the national action plan under a high level working group which can draft in expertise, seek views and work with statutory agencies, non-governmental organisations and others. That is extremely important.
We are obliged to take on board the advice of the Chief Parliamentary Counsel and the Office of the Attorney General. That advice is that the measures we are putting before the House represent the best possible and most robust means to eliminate the evil that is this particular trade from our society and, consequentially, to protect the victims to the greatest extent possible. We are determined to ensure all the elements are in place, that alongside the legislation the other necessary measures are also implemented. We will ensure that our corpus of legislation and the associated administrative framework will meet the laudable objectives of the international conventions.
Perhaps I should not have interrupted the Minister of State when he was raising the question of sincerity. I should have waited for an opportunity to comment on it myself. I will do so now, with apologies. I want to make it clear that I was not impugning the Minister of State's sincerity or that of any individual member of the Government. The Minister of State is wrong if he imagines that I was doing so just because I did not name everyone individually. The contributions of the Seanad representatives of the Government parties have been, for the most part, in support of the amendments proposed by Senator Alex White and me on this matter. I was not doubting the sincerity of those contributions. The Minister of State has not made a cogent argument in support of his refusal to accept those amendments. He does not appear to have the support of his party in so doing. I mentioned the curse of the party whip system in that context.
Will the Minister of State indicate whether he is prepared to address these issues in advance of Report Stage, which his colleagues on the Government side have asked him to do? I reiterate what they said. While the advice given by the Office of the Parliamentary Counsel is vitally important in any legislation, it is a technical matter. The Minister of State is in charge of policy. This is a policy question. It is not purely a drafting or technical issue. My submission should be considered before the Report Stage debate takes place. I ask the Minister of State to do so.
I cannot. It is obvious that amendments proposed by Senators from all parties on Report Stage will naturally be dealt with at that time. We will not pre-empt the Report Stage debate.
I move amendment No. 9:
In page 8, before section 6, to insert the following new section:
"6.—A person who—
(a) sexually exploits a trafficked person, or
(b) takes, detains, or restricts the personal liberty of a trafficked person for the purpose of his or her sexual exploitation,
shall be guilty of an offence and shall be liable upon conviction on indictment—
(i) to imprisonment for life or a lesser term, or
(ii) at the discretion of the court, to a fine.".
This proposed new section provides that a person who sexually exploits a trafficked person, or takes, detains or restricts the personal liberty of such a person for the purpose of his or her sexual exploitation, will be guilty of an offence. This proposal goes further than the Government's proposal. In effect, it avails of the broad definition of "sexual exploitation" provided for in the legislation. It is desirable to provide that any person who uses a trafficked person will have committed an offence. Under the terms of this amendment, if someone who is making a pornographic movie engages the services of a victim of trafficking for that purpose, he or she will have committed an offence. The amendment does not relate solely to prostitution. It avails of the considerably wide definition of "sexual exploitation" set out in section 2.
It appears, from the use in this amendment of the term "trafficked person", that the amendment relates only to adults. The first part of the amendment would make it an offence to sexually exploit a trafficked person. No provision is made for the defence of not knowing, or having reasonable grounds to believe, that the person was trafficked. It is an offence, under section 5, to engage in the trafficking of an adult for the purpose of "sexual exploitation". The terms "sexual exploitation" and "trafficks" are defined in section 2. The definition of "trafficks" includes taking custody of a trafficked person or taking a trafficked person into one's care or charge or under one's control. It also includes providing the trafficked person with accommodation or employment. Given the nature of trafficking, any person who sexually exploits a trafficked person is almost certainly guilty of the offence of trafficking. If an adult is to be deemed to have been trafficked for the purposes of sexual exploitation, there must have been coercion or deceit, or the person must have been threatened or abducted, or had force used against them. It is unlikely, in such circumstances, that the person is consenting to the sexual activity he or she is expected to indulge in as a result of being trafficked.
This amendment is unnecessary for the reasons I have outlined. Some of the sexual activity mentioned in the definition of "sexual exploitation" is already an offence. I refer, for example, to the commission of an offence listed in the Schedule to the Sex Offenders Act 2001 or to the controlling of the activities of a prostitute.
The second part of amendment No. 9 repeats a provision in the Child Trafficking and Pornography Act 1998, which relates to children. This provision is not a trafficking provision. It emerged from section 17 of the Non-Fatal Offences against the Person Act 1997, which created an offence of taking or detaining a child "so as to remove the child from the lawful control of any person having lawful control of the child". The maximum penalty on conviction set for that offence was seven years of imprisonment. A higher penalty was provided for when the taking or detaining of the child was done for the purposes of sexual exploitation. Accordingly, it was a child-centred provision, aimed at protecting children against sexual exploitation. It was not concerned with trafficking. Section 15 of the 1997 Act fully protects people against the activity which this amendment seeks to address. It provides that when a person takes or detains a person, causes a person to be taken or detained, or otherwise restricts the personal liberty of a person for any reason without that person's consent, the person commits an offence and is liable on conviction on indictment to imprisonment for life. The amendment would restrict the operation of that section by obliging the prosecution to prove that the person was taken or detained for the purpose of sexual exploitation. Apart from that comprehensive provision in the 1997 Act, the definition of "trafficks" in this legislation includes taking custody of a person or taking a person into one's care or charge or under one's control or providing accommodation for that purpose. For the reasons stated, the amendment would add nothing to the legislation in regard to the aspirations outlined by the Senator and I do not propose to accept it.
The Minister of State's reply is reasonable but I have two questions. He stated if the word "trafficked" is omitted, the offence is covered under the offences against the person legislation. Does Senator Mullen's amendment not propose a heavier sentence on conviction? The phrase "takes, detains or restricts a trafficked person" would not add significantly to the work of the prosecution in that the prosecution will decide at the outset whether to take the case under this legislation or the offences against the person legislation. In other words, the case could be taken under the offences against the person legislation if it was felt there would be a difficulty proving the trafficking and the prosecution would not do that if it felt it was certain of proving that and a heavier sentence was available. If, on the other hand, there was a doubt about the person being trafficked or there was a difficulty in proving that, the prosecution would take the case under the offences against the person legislation. I do not see in those circumstances how Senator Mullen's amendment makes this more difficult. It surely gives another option to the prosecution.
I am a little unclear about the amendment in that the purpose of the Bill is to deal with those who trafficks and exploit people, primarily women. It is agreed that between 90% and 95% of those who are trafficked for sexual exploitation are women. The thrust of the legislation is to deal with traffickers who are the principal culprits. The women, unfortunately, are victims and they deserve sympathy and support and the best legislation we can provide. Perhaps I am reading the legislation incorrectly or I do not fully understand the thrust of Senator Mullen's amendment but I seek clarification from the Minister of State. Is the amendment covered by the legislation? If so, how? If not, will the Minister of State explain how the amendment is lacking in merit because I am a little confused?
I refer to the remarks made on the previous section. My track record, particularly on issues close to my heart such as the Fisheries Bill, is to take Ministers to task and to support Opposition amendments, while sometimes pressing amendments myself, but because I support the thrust of many of the issues raised by the Opposition that does not mean I am anti-Government. The purpose of debate is to tease out these issues. It is important that three or four Government Members are present to enhance the debate and, in that regard, it is important that we are present to lend our weight. At the end of the day because of the threat of the Whip, we must row in behind the Government but a number of the issues raised deserve serious consideration. While it is unlikely the Minister of State, as he said, will not have a change of heart before Report Stage, as spokesperson on justice issues, I urge him to stand back for a week or two to reflect on the issues raised in order that we get the legislation right. It is important that all of us contribute. However, I am a little confused, although I may misunderstand the amendment, because the purpose of the Bill sits around what the Senator proposes in it. Will the Minister of State clear up the fog in my head on the issue?
I thank the Senators who contributed on this amendment. Under section 5, it is an offence to traffick an adult for the purpose of sexual exploitation. Both "sexual exploitation" and "trafficks" are defined in section 2. The definition of "trafficks" includes taking custody of a trafficked person or taking a trafficked person into one's care or charge or under one's control. It also includes providing accommodation or employment for the trafficked person and, therefore, given the nature of trafficking, any person who sexually exploits a trafficked person is almost certainly guilty of the offence of trafficking. For an adult to be trafficked for sexual exploitation, there must have been coercion or deceit or the person must have been threatened or abducted or had force used against him or her.
Senator O'Donovan queried whether the amendment would duplicate existing legislation. In practice, the provisions are in place. I reiterate the definition of "trafficks" is very broad and it rightly criminalises a wide range of activity.
Senator O'Toole asked whether I could accept more severe penalties to enhance the legislation. Senator Mullen's amendment provides for a maximum sentence of life imprisonment but section 15 of the 1997 Act also provides for this sentence. The provisions in his amendment are, therefore, covered. That meets the aspirations to which the Senators referred in their contributions.
I take it from the Minister of State's comments that because the definition of "trafficking" includes the provision of the person with accommodation or employment and the end user in the example I gave who engages in the making of pornography, which would come under the definition of "sexual exploitation" in the legislation, would be criminalised if he or she were using the services of a trafficked person, whether he or she knew that or not. Is the Minister of State saying that without my amendment, such a person would have committed a crime?
I am concerned that the Minister of State has mentioned the issue of control because I do not see where control comes into it. My amendment tries to criminalise the end user. I am not referring to prostitution per se but to the possibility that a person working in the sex industry in Ireland could purchase the services of a trafficked person in the making of pornography. If the Minister of State is unsure whether such a person would be guilty of a criminal offence as the matter stands, why not accept my amendment?
Based on the brief I have been given, I am not certain that the issue in question is covered from the perspective of Senator Mullen's amendment. If a gap is identified, I will have it investigated before Report Stage. I am not clear at this point whether the Senator's amendment addresses the issue he raised but I will ensure it is adequately addressed if it is not already provided for.
I move amendment No. 10:
In page 9, before section 11, to insert the following new section:
11.—(1) Subject to the subsequent provisions of this section, a person who is an alleged victim of trafficking, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, shall be given leave to remain in the State by the immigration officer concerned.
(2) Subject to the subsequent provisions of this section, a person to whom leave to remain in the State is given under subsection (1) shall be entitled to remain in the State for a period of 6 months which may be renewed.
(3) The Minister shall give or cause to be given to a person referred to in subsection (2) a temporary residence certificate stating the name and containing a photograph of the person concerned, stating that, without prejudice to any other permission or leave granted to the person concerned to remain in the State, the person referred to in the temporary residence certificate shall not be removed from the State before the 6 month period has elapsed.
(4) The person referred to in subsection (2) shall not leave or attempt to leave the State without the consent of the Minister.
(5) An immigration officer may, by notice in writing, require the person referred to in subsection (2)—
(a) to reside or remain in particular districts or places in the State, or
(b) to report at specified intervals to an immigration officer or member of the Garda Síochána specified in the notice, and the person concerned shall comply with the requirement.
(6) A person who contravenes subsection (4) or (5) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €500 or to imprisonment for a term not exceeding 1 month or to both.
(7) Where an immigration officer or a member of the Garda Síochána, with reasonable cause, suspects that the person referred to in subsection (2)—
(a) poses a threat to national security or public order in the State,
(b) has committed a serious non-political crime outside the State,
(c) has not made reasonable efforts to establish his or her true identity,
(d) intends to leave the State and enter another state without lawful authority, or
(e) without reasonable cause has destroyed his or her identity or travel documents or is in possession of forged identity documents, he or she may detain the person in a prescribed place (referred to in the Refugee Act 1996 as "a place of detention").
(8) The Minister shall make regulations providing for the treatment of persons detained pursuant to this section.".
I am not pressing my amendment at this stage because I hope to reword it and move it again on Report Stage. However, the intention of protecting victims of trafficking from deportation ought to be included in the Bill.
I raised this issue when I spoke on Second Stage of the Bill. We should learn from international law, including developments in Europe, Great Britain, Canada and Australia, not to take the easy option. This problem does not arise in respect of the enlarged EU, despite what Senator Mullen said about difficulties for Bulgarians and Romanians, because EU citizens have rights. However, trafficked persons may also come from Africa or Asia. I advise the Minister of State in advance of Report Stage that we must not copy the failed approach taken in Canada which took the easy option of deporting non-Canadians. By doing so, it sends unfortunate women back to their former lives. If they wish to be repatriated, that is fine, but if they are coming from a war-torn country or have been abused in their place of origin, we must consider them afresh.
If we are to achieve anything with this Bill, it should be to ensure the mistakes made in other jurisdictions are not repeated. I implore the Minister of State to consider the issue seriously. By ignoring the advice of Ruhama and other non-governmental organisations interested in this area and failing to address this issue, we will create a lacuna in the Bill. We must not walk away from the arguments made by Senator Mullen. The easy option is to copy the mistakes made by our Canadian counterparts.
I move amendment No. 11:
In page 10, before section 12, to insert the following new section:
"12.—A person who is a victim of an offence under this Act shall not be prosecuted for entry into, or presence in the State for carrying out labour or sexual acts where those sexual acts were a consequence of the trafficking of that person.".
Again, I wish to withdraw this amendment with the intent of rewording it for Report Stage.
I move amendment No. 13:
In page 10, before section 12, to insert the following new section:
12.—A victim of an offence under this Act shall not be prosecuted for entry into or presence in the State or for carrying out the labour or sexual acts, insofar as such entry, presence or carrying out labour or sexual acts were a consequence of the trafficking of that person.".
This amendment was only discussed in the sense that Senator Mullen indicated his intention to withdraw amendment No. 11 and revisit it on Report Stage. In view of his decision, it would be appropriate for me to do the same.
I move amendment No. 14:
In page 12, before section 14, to insert the following new section:
14.—The Criminal Law (Sexual Offences) Act, 1993 is amended by the insertion of the following section:
"14.—A person who avails of the services of a prostitute shall be guilty of an offence and shall be liable upon conviction on indictment—
(i) to imprisonment for life or a lesser term, or
(ii) at the discretion of the court, to a fine.".
When this Bill was discussed in the Dáil, the Minister for Justice, Equality and Law Reform heard various proposals to the effect that it would be desirable to criminalise users of sexual services of trafficked persons. The objections he outlined were not completely convincing but he was correct when he stated: "In terms of legal policy, if one wants to provide for what is being suggested, one must criminalise the purchase of sex generally." If difficulties arise in respect of bringing prosecutions against those who avail of the sexual services of trafficked persons, one way to be sure of prosecuting is by criminalising the purchase of sex generally. In a sense, the Minister averted his eyes from an elephant in the room given that the use of persons in prostitution is an unconscionable affront to the dignity of the human person and the rights of women in particular because they represent the majority of the victims.
I sometimes detect a certain fatalism among policy makers on the issue of prostitution. It is referred to as the oldest profession and we are told people practise it as a matter of choice. When one considers the economic circumstances in which many persons in prostitution find themselves, it is hard to imagine they are in the business as a matter of free choice properly understood.
During the debate in the Dáil, the argument was also made that criminalising the purchase of sex generally would drive the prostitution industry further underground. We were told about a Norwegian study which found that Swedish legislation passed in 1999 to criminalise the purchase of sex, and not yet abolished, could lead to the unintended consequence of driving the prostitution industry underground. However, this seems very unlikely. In fact, that Norwegian study also found that the Dutch, who went the opposite route and created structures which legitimised prostitution, still experienced a major underground problem that involved violence against women, the exploitation and abuse of children and so on. If it is the case that the Dutch experience of liberalisation saw underground activity of a very disturbing nature, it seems hardly likely that if we were to go the route of criminalising the purchase of sex generally, we would somehow bring about a greater level of seedy, violent and dangerous underground activity and prostitution. Undoubtedly, if it was the case that by criminalising the purchase of sex generally, we would put a certain number of people, women in particular, in danger, then we should be very slow to go that route.
I note, however, that Ruhama — we are back to sincerity again — the organisation which perhaps can best claim to be sincere in its outreach to women in prostitution, has urged Members of both Houses to go the route of criminalising the purchase of sex. It seems fair to say that if one criminalises the purchase of sex, not only will one hinder the practice of prostitution, one will hinder the trafficking of persons for exploitation in prostitution because one is attacking the demand side of the market. I know one must attack the supply side as well. By attacking the demand side and by establishing it is a criminal offence to purchase the sexual services of another person, one is not doing anything to make the emergence of an underground type of prostitution more likely because all one is doing is creating a disincentive for the user.
We must bear in mind that at this time a great deal of prostitution is going on in a way which is very hard to police. People are able to access the services of persons for prostitution over the Internet, using mobile telephone technology and so on. While it can be difficult to detect and prosecute this offence, it is not impossible.
Again, I stress the educative power of the law. We operate at a time when it is a criminal offence to smoke in a pub because of the damage it does to other people. It is also a criminal offence to litter because of the disservice that does to the community. What does it say about our society that we would establish such relatively trivial things as criminal offences but that the exploitation of another person's body should not be a criminal offence? What kind of bizarre form of political correctness has taken hold of our society when we cannot see the wood from the trees on this issue and recognise that a grave offence is perpetrated against a person when another person exploits his or her body? This is not a gender specific issue, although it so happens that women are the primary victims. The same principle applies whether one is talking about a man or a woman.
There are many precedents for importing provisions dealing with one issue into legislation which deals with another. Undoubtedly, this legislation is primarily about trafficking but the issue of prostitution is tied up with it. I go back to the Swedish example. When they criminalised the purchase of sex in 1999, they reported considerable success in removing women from the streets in terms of street prostitution. They also believed they had greatly reduced the amount of trafficking into their country because they had attacked the demand side of the equation. They reported that merely hundreds of persons were trafficked for work in underground prostitution compared with thousands in neighbouring Finland, for example.
There is, therefore, a connection. This is not to import an extraneous piece of criminal legislation into a Bill about trafficking. It is to bring in an issue which is fite fuaite in the sense that by attacking the demand side when we criminalise prostitution, that is, the purchase of sex generally, we also make quite clear our revulsion of this, tackle those who would use and exploit other persons, including persons who happen to be trafficked, limit the potential market available for trafficked persons and thereby attack the evil activity of trafficking.
I repeat that we must not ignore the educative power of the law and its power to send an important message. I am not suggesting convictions will be impossible in this area — far from it. It appears to be relatively simple to secure a conviction in an area such as this. I suggest it is time for a change of heart in our society and at the level of policy making. We need to recognise this is a human rights issue which unites people who may be philosophically traditional in their opposition to this type of exploitation of persons. Surely it is a very modern concern as well.
In all our valuable and legitimate discourse about women's rights, how can we ignore the fact that when we fail to criminalise the purchase of sex, we send a very negative message about the dignity and worth of more than 50% of our population and the relationships between men and women? We undermine family life by failing to express our social abhorrence of behaviour which undermines family life and proper relationships between men and women. We corrupt younger people in their understanding of human sexuality and the importance of the dignity of the person in our society. On that basis, I will press this amendment because it is time we took a responsible stand on this issue.
There is much merit in what Senator Mullen said. I am not sure it is a matter for this Bill but if we do not criminalise the purchase of sexual services, we do a huge disservice to women. I do not want to hear what was said on Second Stage that prostitution is the oldest profession in the world and that one cannot stop people from using prostitutes. I find that abhorrent. I would say fewer than 2% of women involved in prostitution want to be prostitutes.
It is not a career choice. It is driven by drugs and cash-rich pimps. We saw an example of that during the week with the successful conviction of Martin Morgan. I look forward to his sentencing on Friday. A life sentence would not be long enough for the man who was involved in vile and disgusting activity.
We need to look at the laws on brothel keeping, advertising and websites. I could name nearly four or five websites with names such as escortgirls.com and I do not even read them. Most people know where to go to purchase sexual services. If we are genuine about stopping the trafficking of persons, including women and children, we must take on board the tenet of what Senator Mullen suggested and include it in legislation. I do not understand why that cannot be done.
Earlier I heard the Minister of State refer to a law dating back to 1885. I am completely confused because as a practitioner, I did not realise it was a crime to purchase sexual services. In general, it is accepted that such behaviour is not a crime. I would welcome it if the Minister of State could clarify the position in that regard. If we are serious about the legislation, this matter must be examined.
The Minister of State earlier outlined the position in respect of amendment No. 8 which everyone welcomed as a step in the right direction. The new section 6 proposed in the amendment relates to "Soliciting or importuning for purposes of prostitution of trafficked person." Perhaps the Minister of State might bring clarity to the situation, if not now then on Report Stage.
As I understand it, the purchasing of sex is an offence. If so, which legislation applies in that regard? The Minister of State referred to a particular Act dating from the Victorian era. The Bill deals with the trafficking of human beings, 90% to 95% of whom are women. Surely there must be a strong legal framework in place to deal with this matter. I understand such a framework exists in our domestic legislation. One cannot make availing of the services of trafficked women, primarily by way of prostitution, an offence and not make the availing of the services of prostitutes in general — who make up the majority of those in the profession and most of whom are not trafficked — an offence. I ask that the Minister of State clarify the position in that regard.
Amendment No. 14 in the name of Senator Mullen provides that a person convicted on indictment could be sent to prison for life or a lesser term. Life imprisonment is a major penalty and in some instances perhaps it is deserved. Everyone seems to agree that the abuse and sexual exploitation, in one form or another, of trafficked persons, particularly those who are women, should be prevented.
Senator McDonald referred earlier to the 1885 legislation mentioned by the Minister of State. That legislation criminalises clients who use, for example, prostitutes. From 30 years of practising law, I am aware that said law is more ignored than observed. I am not aware of too many instances in which this Act was invoked and prosecutions under it are almost as scarce as teeth in a duck. There appears to be a tendency to accept that prostitution has been in existence for thousands of years and that we should turn a blind eye to it. I do not advocate this view.
There is a view abroad that if we accept prostitution — I do not advocate that we should do so — we should deal with it as it is handled in other countries, namely, that it should be brought out into the open, regulated, etc. I have heard people suggest that we should do as they do in Amsterdam and other European cities where prostitution is quite open and above board but where regulation and medical controls are in place. The prostitutes in these locations are not being trafficked and are, perhaps, being exploited to a lesser extent. I am not stating that the latter is any more acceptable than what occurs here.
If the Minister of State cannot assure me that either this Bill or existing legislation will lead to those individuals, primarily males, who exploit women being brought before the courts, I will be obliged to support Senator Mullen. I also wish to indicate my support for the forceful argument put forward by Senator McDonald.
I support the amendment. The constituency in which I live is predominantly located in the inner city. Too many parts of it continue to have severe problems with the practice of prostitution. I have never seen such misery as that experienced by those, mostly comprising women, who are involved in that trade.
There is an ambivalence in our law and society regarding the types of behaviour we believe to be acceptable. Senator Mullen referred to the law as playing an educational role. It also plays, as the Senator will agree, a much stronger role. The law sends out a signal regarding the types of behaviour society believes to be acceptable and not to be. It also indicates our willingness to prosecute in respect of those types of behaviour we are not prepared to allow. There is an ambivalence in existing law in that regard.
I attended a meeting of a community policing forum in the constituency in which I live last week. A number of gardaí present referred to the difficulty they experience in successfully prosecuting people who have procured the services of prostitutes. For too long a glamour has attached to the trade of prostitution. There are people who presume that those who enter this trade do so with some degree of choice. Nothing could be further from the truth.
We must support the amendment and send out a clear signal regarding two matters. First, the existing legislation is inadequate and an amendment of this nature is required to fix it. Second, we must make it clear that those who procure the services of prostitutes have no place in our society and the law should reflect this. I support the comments made by other Senators in respect of this matter.
If the Minister of State did nothing during his time in office other than accept or rewrite this amendment to make it clear that those who use prostitutes are breaking the law and should be prosecuted, it would be a fine memorial to him. There can be no argument against the points raised by Senators McDonald and Mullen.
I am familiar with a number of quite logical arguments regarding the legalisation of prostitution. I can accept that there is a case for and against legalisation and that it is a matter people can discuss rationally. However, I have never heard any argument in support of the situation that currently exists in Ireland. Of the three people involved in the eternal triangle of pimp, prostitute and user, only the first two are regularly convicted. However, the user — the person who creates the demand — is never prosecuted. It was stated that legislation exists in this regard but I have never heard of a person being prosecuted for using the services of a prostitute. Perhaps the Minister of State will indicate when that legislation was last invoked because, during the past 20 years or more, I have not seen reports in respect of prosecutions under its provisions in any of the newspapers I read.
The case in Ipswich was concluded in the past week which concerned the killing of five prostitutes. We have all read about that case but I am unsure if people have read about the fallout from it, which is quite interesting. I have listened to and read the words of various people in social services and counselling from the Ipswich area who have explained what they have been doing for the year and half since the culprit was arrested. They have managed, through counselling and support with a very small amount of money, to take a significant number of women out of prostitution.
As Senator McDonald quite rightly stated, the number of prostitutes in the business by choice is minimal. The idea that the trade being referred to as the oldest profession gives it an attractiveness because of polite language is utterly unacceptable. Anything I have read about prostitution indicates and convinces me that 99% of prostitutes are in prostitution because of drugs, other addictions, poverty or because they are simply under the control of unscrupulous people. That is the reality.
It seems the case is unanswerable but that trafficking and prostitution are inextricably and intrinsically linked. People are not being trafficked to work as au pairs in south Dublin or to earn decent wages and pay taxes. People are trafficked for the simple reason of being further forcibly and involuntarily involved in crime in the country to which they are being trafficked. It is clear the majority are crimes based on sexual exploitation.
This leads us to the user. In this morning's newspapers we read of somebody being prosecuted for looking at a form of pornography on the web, which is a pretty passive experience. When that piece of legislation went through the Houses, many people were a little worried that this act was a long way removed from the crime and the child who was being abused or the exploitation by pimps, etc. The more it was discussed and people thought about it, the more certain we were that these people were creating the market. The people looking at child pornography were creating the demand and for that reason we had to take the steps to get rid of the problem.
With regard to Senator Mullen's proposed amendment, we are considering demand. If it becomes a prosecutable crime to use the services of a prostitute, a crime for which somebody generally will appear in court, it will change the whole ball game. The man in Ipswich apparently used to drive around the block four or five times, looking these women up and down before finally making a choice. Everyone knew about it and he was on CCTV etc. Those five women would be alive today under a different set of circumstances.
Some 99% of trafficking is for the purpose of creating a market in prostitution so there is an inextricable link. Any argument that it is some way out of place in this proposed legislation is not correct and does not hold water. What we are trying to do here is focus on the demand area rather than the supply, which is always the most effective way to deal with such issues, whether they involve drugs, prostitution or trafficking. This proposed amendment deals with that point.
No person of decency, correctness or logic could argue against the amendment. Unless there is a convincing and compelling argument as to why this should not be passed — or an amendment very like it — we will have done a very bad day's work in not doing our utmost to push this to its limit.
One of Senator Joe O'Toole's final points asked if there is an offence with regard to the client. The Criminal Law (Sexual Offences) Act 1993 makes it an offence to solicit in public for the purposes of sex. The prostitute, client, pimp or other third party can commit the offence. If Senators have an opportunity to refer to the Criminal Law (Sexual Offences) Act 1993, there are a number of provisions in that Bill regarding issues that have been raised by all Senators who have contributed to the debate on this amendment from Senator Mullen.
The sections refer to soliciting or importuning for purposes of prostitution, loitering for purposes of prostitution, organisation of prostitution, living on earnings of prostitution and brothel keeping.
To clarify for Senator O'Toole, the Criminal Law (Sexual Offences) Act 1993 makes it an offence to solicit in public for purposes of sex. The prostitute, client, pimp or other third party can commit the offence.
I understand that. I emphasised the provision was in public. That is the provision of the 1993 Act. Senator O'Toole asked if there was a provision for the client to commit an offence. That provision exists in the 1993 Act.
I said "in public". That provision exists.
Different sections of the 1993 Act refer to soliciting or importuning for purposes of prostitution, loitering for purposes of prostitution, organisation of prostitution, living on earnings of prostitution and brothel keeping. There are other aspects as well but they were the first few I could point out that are relevant to some of the issues that have been raised here.
With regard to Senator Mullen's amendment, we have already discussed the question of availing of the sexual services of a trafficked person. My amendment creates a new offence of soliciting or importuning of such a person, as was discussed earlier. This amendment goes beyond the parameters of trafficked persons and seeks to criminalise, I assume, the purchase of sex from a prostitute. In other words, it is a prostitution measure rather than a trafficking measure. As such it should be considered as part of a public debate on prostitution and any changes to the law that would result from the debate could be accommodated in appropriate legislation. That does not take away from the obvious necessity to deal with this issue, a major concern to people.
The Department of Justice, Equality and Law Reform keeps under continuing review the laws on prostitution, as well as the laws in other countries. It approaches the laws of prostitution from several angles, including the nuisance caused by public soliciting, the safety of prostitutes, ensuring the laws on controlling organised prostitutes are working satisfactorily and the advertising of prostitution. Those issues were referred to by Senator Donohue as well.
The law does not take a moral stand on consensual activity between adults in private. In recent years calls have been made to criminalise the purchase of sex, which this amendment purports to do, and decriminalise the sale of sex. The stated purpose of this policy is to reduce the instance of prostitution by criminalising demand.
We must ask ourselves if such a policy works where it has been tried. There are conflicting statistics and opinions on the effectiveness of criminalising demand but one thing is clear. Demand does not disappear but is displaced. It goes from the streets to the Internet, to mobile telephones, to hotel rooms and apartments. It is displaced to neighbouring countries and likely to other countries as well.
In his introductory remarks, Senator Mullen referred to technology such as the Internet and mobile telephones, along with hotel rooms. I will refer later to Sweden, as Senator O'Donovan mentioned it earlier. It is easy to quote figures showing the success of criminalising the purchase of sex. It is just as easy to produce figures showing that it is premature to come to any conclusions. It has been claimed that the number of street prostitutes in Sweden has halved since the law was changed. The Swedish Government has estimated that the number of prostitutes in Sweden has dropped from 2,500 to 1,500 since 1999. Many have disputed those figures, including a social anthropologist who has studied Swedish prostitutes over the past ten years.
I will refer to it in a moment. She states that no one knows if there are fewer prostitutes. That is not surprising as the law could only serve to drive prostitution underground. It has been said that some of the neighbouring countries complain about an increase in the demand for prostitutes in there. The question is extremely complex. One former prostitute is quoted as saying that underground profiteers, pimps, and traffickers flourish under the new laws and that prostitutes would naturally prefer to avoid such people.
The authorities in Sweden admit that traffic has increased a little since 1999 but that it is lower than in neighbouring countries. Sweden's national rapporteur on trafficking has estimated that the number of prostitutes has more than doubled. It seems that prostitutes in Sweden must operate more secretly and therefore feel more vulnerable. The purpose behind the Swedish law is to treat prostitutes as victims and it is ironic that the very people the law seeks to protect may not necessarily benefit from that law.
People have criticised our laws governing prostitution but few have suggested practical or thoroughly thought-out alternatives. The laws criminalise public soliciting which should reduce the number of prostitutes working on the streets where they are most vulnerable and which is one of the purposes of criminalising demand. The prostitute, the client, or a third party can solicit in public and from a motor vehicle. Public place is given a wide meaning in the legislation. Running or managing a brothel is also an offence, for which there have been several recent prosecutions. The law protects prostitutes from persons living off their earnings or organising or controlling prostitution and advertising of the services of prostitutes and brothels is banned.
The Department of Justice, Equality and Law Reform is monitoring legislation here and in other countries. If it can find changes in the law that would reduce the level of prostitution, would not drive it underground where prostitutes would be more vulnerable, and would not make it more difficult to apprehend persons who profit from the prostitution of others, it will bring forward proposals for such changes for public discussion. The Department is not dismissing out of hand the Swedish law or questioning any statistics or comments. On the contrary, it is monitoring its effectiveness as part of the overall continuing review of the laws governing prostitution. I hope that outline of a complex area can give some idea of the conflicting views on, and the difficulty of dealing with, this issue. The Department is considering the adequacy of other legislation and whether we can draw up plans that will achieve the outcomes we all desire. This requires a great deal of public discussion and debate.
I cannot accept the amendment as Senator Mullen outlines it.
I have the 1993 Act in front of me. I read it three times while the Minister of State was speaking. It is not a very long Act. It does not cover the situation dealt with in Senator Mullen's amendment except in perhaps 10% of cases. I do not see any reference to the user of prostitutes in a way that covers this as Senator Mullen's amendment does. The Act refers to the organisation of prostitution, living off immoral earnings, the managing or assisting in the management of a brothel etc. It states that, "A person who in a street or public place solicits or importunes another person or other persons . . . shall be guilty" etc., but it does not in any way deal with the case before Senator Mullen. We will check the Official Report but if the Minister of State is saying this matter is already covered in legislation, I cannot see it. Before Report Stage, I will also read the Official Report of the debate on this legislation when it went through the Houses in 1993, and I am pretty sure I will be shown to be right on that point too.
I referred the Senator to the 1993 Act from which he has quoted in answer to the question he raised, that a client could not be convicted. The Act refers clearly to the fact that a client soliciting in public can be convicted and the Senator has read out the section dealing with that. I did not say this Act dealt with all the issues that Senator Mullen raised. I quoted the lines Senator O'Toole quoted, "A person who in a street or public place solicits or importunes another person or other persons for the purposes of prostitution shall be guilty of an offence" in answer to his question, when I commenced my final contribution.
Maybe I am misunderstanding the point because the Act does not define the words "solicits or importunes" although it does explain their use. Is the Minister of State suggesting that the client is the person who is soliciting or importuning because I thought that was either the pimp or the prostitute? I am not an expert in this area.
——the prostitute, the pimp or a third party. That is contained in the provisions in the Bill which the Senator will see if he has an opportunity to go through them again.
I do not mean to be difficult but I also do not wish to be a "yes" person. The Minister of State said he would welcome a public debate on prostitution. We will not get the legislation right to stop trafficking of persons, be they non-national or national, and the abuse that surrounds prostitution unless we address the issue. The debate needs to follow immediately after this discussion in some form.
Prostitution is underground. Since 1993 there has been an explosive increase in the number of hotels and apartments used for this purpose. The world is different, the Internet is easily accessible and mobile telephones are used. The 1993 Act does not reflect today's reality. It would be easy for me to find five or six women to support me.
Who are we protecting? Women comprise 13% of the membership of the Oireachtas. Were 87% of Members female and 13% male, the criminalisation of sexual services would be on the Statute Book.
I have been highly impressed by the manner in which Senator McDonald has spoken on this very good debate and I congratulate Senator Mullen on tabling this amendment. It brings to mind the role of the law in changing behaviour. In the area of equality for example, many changes to legislation were required before actual changes in behaviour were observed. Although I do not know whether Senator Mullen is prepared to support this, I ask the Minister of State to take on board the statements made in the House today and to return on Report Stage with a fresh view from the Government on this topic.
The trafficking field is changing dramatically. Some years ago, I asked the then Minister for Justice, Deputy John O'Donoghue, what were the numbers of children who were being trafficked or were coming into Ireland unaccompanied. I subsequently attended an international conference on the topic and quoted the reply I had received, which was that the number was very small. However, it was not accurate and in general, Irish figures on this issue are inaccurate. There is enormous under-reporting of what is happening.
During the Second Stage on this Bill, I stated, "human trafficking is recognised as the third most lucrative international crime after drugs and arms trafficking", which is extraordinary. As for the debate on whether the criminalisation of the buying of sex in this fashion will drive everything underground, a great deal of such activity is underground anyway. A further point is that we take very strong action against those who try to sell drugs. Although the introduction of more laws to deal with the supply and marketing of drugs drives the trade further underground, we continue to develop our laws to ensure we can deal with it. This is not necessarily an excuse, although I realise there is concern in Sweden that a certain amount of the sex trade has moved to Finland or to other countries and to a degree, the jury is still out in respect of the exact impact of the measure. Nevertheless, the point remains that one should move in the direction of criminalisation and should not be ambivalent.
This entire area has been characterised by an ambivalent approach over generations. Increasingly however, one can see the connections to crime, trafficking and drugs, as well as the sheer scale of the business, which also obviously is linked to pornography. I support those Members who raised the question of free will and prostitution. Although it is glamorised frequently, as Senator Donohoe stated, it is a far from glamorous world. It is a highly seedy world that devalues and diminishes women. Research on women in prostitution frequently shows they have had deeply unhappy early childhoods, have been the victims of abuse and have had little choice in the career paths they wished to follow.
I ask the Minister of State to examine the amendment and to return on Report Stage, having considered whether a Government re-think would be possible in this respect. It does not appear to make sense to me. I note that in the Dáil, the Minister for Justice, Equality and Law Reform either accepted an amendment or stated he would consider the amendment proposing criminalisation of sex with trafficked women. Am I correct in this regard?
While I understand the Minister of State's dilemma, as he is obliged to represent the Government's position, the arguments do not hold up. I was thinking of the phrase, "smoke and daggers" as I listened to some of the arguments, in that some of them throw smoke around the issue but do not offer any compelling reason not to criminalise generally the purchase of sex. The Minister of State let the cat out of the bag somewhat when he stated the law does not take a moral stance on consensual activity between adults in private. Members know this and it is fine when one is speaking of private consensual activity and is not speaking of the purchase of sex. However, this implies something of the Government's thinking in this regard, which is that the issue of the purchase of sex generally is to be seen as a form of consensual transaction between adults.
This is the problem because there is a failure of the imagination in this regard. There is a failure to see that one cannot simply consider the prostitution contract as a kind of ordinary, respectable contract or private matter between the parties so consenting. At issue is the exploitation of vulnerable people and whether those vulnerable people are of a mind to state they choose to be in the prostitution industry is immaterial. When one considers the circumstances that lead people to choose to enter prostitution, it makes no sense to talk about free choice. There may be some rather zany or perverse people who, armed with many other choices in life, choose to go into prostitution but those people should not guide Members in respect of public policy in this area.
I acknowledge Senator O'Donovan's point when, while commenting on the penalties proposed in my amendment, he suggested that a potential life sentence might be somewhat extreme. I do not quite recall the words he used. While I accept his point, I am content to press this amendment, subject to the Minister of State's response, on the basis that the amendment allows discretion in this regard because it states, "to imprisonment for life or a lesser term". Consequently, this will not import an overly-draconian measure into the law.
I refer to the Minister's comments about the law already providing, at least to some extent, for the criminalisation of those who solicit and that this might include the client in certain circumstances. This is a red herring because it would not cover the generality of situations in which clients avail of the services of persons in prostitution. Within the past week, Members have learned of Chinese-run massage parlours in Dublin, in which a person is offered prostitution services in the context of attending or entering a massage parlour. Members are dealing with a seedy and murky world in which a person is not obliged to solicit in public to avail of the services of a person in prostitution.
One should consider some of the arguments that are made behind the scenes. While I will not name names in the House, policymakers have been known to tell people concerned about this subject that if one were to criminalise prostitution, certain rogue elements within the Garda Síochána, for example, would try to blackmail potential users. That such an argument would be even made informally reveals an entire mindset that one should deplore because one could make that point about any law. A person might seek to use any criminal law to blackmail a potential user. It also manages to imply that the potential user is doing nothing very harmful. One also hears the suggestion that those who avail of the services of people in prostitution are somehow sad figures who should not be criminalised. Again however, this is a matter of enforcement. Decisions will be made about when to seek to prosecute and when not to so do. One hears the unhelpful argument that prostitution is a form of vent in our society for the outlet of certain sexual urges that cannot be controlled. This however, is to turn the persons in prostitution into guinea pigs for, or victims of, some aspects of the sickness within our society.
Senator O'Toole made an excellent point when he pointed to the incongruity of the user being the only person who does not face criminal sanction. I also wish to revisit the Minister of State's comments about Sweden and the statistics in that regard. I found this argument bizarre. It was not apparent to me that the Minister of State had any great confidence in the statistics. Rather, his approach appears to be if in doubt, do nothing. However, our approach should be if in doubt, do something. I note that Sweden has not repented for its 1999 legislation to criminalise the purchasers of sex generally. Criminalising the purchase of sex generally does not solve the problem, even of trafficking, but displaces it. That is the important point. If Sweden's law has brought about a position where people are trafficked not to Sweden but to other countries, is that not evidence of its success? Is it not the responsibility of those other countries to amend their laws accordingly?
I remind the Minister of State that we are an island nation, therefore, displacement in this regard will not be easy. No doubt the British have a long established constitutional and parliamentary system and they will be able to take appropriate measures, if as a result of our criminalising the purchase of sex, there is an increase in the number of people being trafficked to Britain instead of to Ireland. The displacement argument makes no sense. I reiterate that what the Swedes report is that there has been a small increase in the number of persons trafficked because this is a problem that has been on the increase everywhere, but what is remarkable is that Sweden has had less of an increase in that regard than other countries. At a time when the incidence of trafficking has been on the increase in other countries, it is remarkable that the Swedes have managed to more or less control the problem. This is an example of a smoke and daggers argument. It is no argument to say Sweden has seen a slight increase in trafficking, if the rest of the world or its adjoining countries have seen a massive increase in the problem.
We need to revisit the point about what happens when we criminalise the purchasers of sex generally. How do we risk driving the problem further underground? All we will do is create a disincentive for the potential user, be that a person who wants to ring a number on a mobile telephone, walk into a brothel or surf the Internet. There is no counterstep the potential trafficker can make to undo the effect of criminalising the user or the purchaser. Therefore, the argument put forward is a smoke and mirrors or a smoke and daggers one.
On that basis, I ask the Minister of State to have a change of heart in the interests of human rights, human dignity, solidarity between the sexes in our society and of recognising that those who purchase the services of other persons in prostitution engage in a grave attack on human dignity. It is time for a courageous stance to be taken. I ask the Minister of State, at the very least, to undertake to bring forward a suitable amendment on Report Stage. I will await his response on that before committing myself one way or the other on the amendment.
I draw to the attention of the Senator that we are dealing with the enactment of this Bill. I said earlier this evening, and on Second Stage, that those found guilty of abusing the services of trafficked people should be treated as having committed a crime.
I am disappointed in the way the Senator is pursuing his amendment. His contribution to the debate this evening has been laudable but now he has diluted that. The Criminal Law (Sexual Offences) Act 1993 is a different matter. We must first sort out this Bill and we can then revisit the 1993 Act. Let us first ensure this Bill is done and dusted and enacted.
In response to Senator Mullen's comments on my introducing the Criminal Law (Sexual Offences) Act 1993 as a red herring, I referred to that Act in response to the question raised by Senator O'Toole. It was not introduced as a red herring but merely referred to in answering the Senator's question.
I outlined the experience in this regard in Sweden. Senator Mullen doubts the existence of the social anthropologist to whom I referred.
Her name, and I hope I pronounce it correctly in my best Cavan accent, is Petra Östergren. She is quoted as having said that, "no one knows if there are fewer prostitutes". A former prostitute, whom I will not name, is quoted as having said, "underground profiteers, pimps and traffickers flourish and we would rather avoid them". That relates to the Swedish experience.
To my knowledge — I have not had time to check this and I am open to correction on it — no other country in Europe has followed the Swedish example.
One of the British Home Office Ministers visited Sweden some time ago to study the impact of sex laws it had introduced. That trip was part of a six month review of British policy on prostitution. We all share a desire to deal with this evil issue. However, it is not an issue with which we will deal in this Bill, rather it is one on which widespread consultation is required.
We need to get such legislation right. I referred to the British example, as Senator Mullen referred to Britain as being our near neighbour. Britain is involved in a consultation process. I am speaking in a personal capacity in stating that the issue of prostitution in the context of widening and improving our laws has not been discussed in government since I took office. We want to implement this Bill as quickly as possible. The issue of prostitution referred to is wider than the scope of this Bill. It is an issue on which widespread consultation and deliberation would be required. We need to get such legislation right to ensure we do not implement legislation that would make the position worse. We want to avoid that. Whenever legislation is introduced, we want to ensure it deals with the issues we want to address. Even if we wanted to widen this measure, as outlined in Senator Mullen's amendment, such a change would have to be referred back to Government. Of necessity, such a measure would require widespread consultation, not an ever-ending consultative process but one that would ensure we got the desired result.
I responded earlier that I would not be accepting the amendment.
I still have not heard the answer to the question I raised. What percentage of trafficked people would the Minister of State guesstimate are not trafficked for the purposes of prostitution? That is a crucial issue. That is the relevant aspect of the issue and that figure would answer Senator Mary White's point as to why the issue of prostitution is central to this issue. The words I used were "inextricably linked". All the cases about which we read are of people trafficked for the purposes of prostitution.
Section 7 of the 1993 Act, to which the Minister of State referred, states, "A person who in a street or public place solicits or importunes another person ...". I am not clear as to what the words "solicits or importunes" mean in that context and I accept that, but I could establish that quickly in an hour. However, I am certain that a public place, even in the way it is defined in that Act as a place to which the public have access, does not cover the places in which prostitution takes place off the street.
Two issues have arisen. As the Minister of State said, he referred to the 1993 Act in responding to the issue I raised. Perhaps that is the way to deal with it. I raise the question of what percentage of people trafficked are not trafficked for the purposes of prostitution. Is it not simple to change beyond reasonable doubt what is intended by section 7 of the Criminal Law (Sexual Offences) Act 1993? If, as the Minister of State said, it was intended to mean the user of prostitutes, then we should make that clear. There would then be nothing new to worry Senator White or anybody else, as it would be already included in legislation. I ask the Minister of State to answer me this one conundrum. Senator Mullen's amendment proposes to make the user of prostitutes guilty of an offence. There is no argument on this point. In the Minister of State's response to this proposal he made two points. He said this is covered under section 7 of the 1993 Act and he also stated that to do what Senator Mullen proposes would require widespread consultation. I ask him to riddle me those two things. Why is widespread consultation required to criminalise something which the Minister of State informs us is already a criminal offence? This does not make sense. We either deal with this here and now or introduce something similar afterwards, but we cannot have it both ways. It is either an offence or it is not. If it is an offence then widespread consultation is hardly necessary on something which, as Senator Lisa McDonald said, if asked, 90% of the women of Ireland would be in agreement with us.
I welcome Senator O'Toole's argument. I have taken the view that what the Minister of State is saying is that, at most, in certain circumstances it might be a crime to be a client, so to speak. My position has been that even if that were the case — it does not appear to be clear it is — it would not cover the generality of situations.
I thank the Minister of State for naming the anthropologist. He did as well at giving the name in his Cavan accent as I would in my Galway accent. However, I did not hear the Minister of State quote the Swedish Government. I did not hear any analysis on the reason the Swedish Government does not appear to regret its position——
No, I am talking about the Minister of State's commentary on the Swedish Government. If one quotes an individual, a social anthropologist, it would seem appropriate to have one's homework done and to have consulted with the government of the country which appears to have a very successful piece of legislation generally criminalising the purchasers of sex.
My point is that the Senator was eloquent on Second Stage when she gave the job specification of a person in prostitution. I would have thought that would mean she would understand why now is the time. There are plenty of instances where in legislation dealing with one issue, provisions can be included which touch on a connected issue. As Senator O'Toole said, there is no doubt that the question of criminalising the users of persons in prostitution is connected to the issue of trafficking.
I will press the amendment as I do not think this is an issue that requires wider consultation. It would be as inappropriate to suggest this requires wider consultation as it would be to suggest the issue of the radical equality between people of different racial origin requires wider consultation. The mere notion that there are certain things about which one needs to consult does a disservice to the persons who are the victims of this vile area of human experience. I would be doing a disservice to the people doing great work, such as those in Ruhama, and I make no apologies for saying they are the people with the most sincere interest in the welfare of persons in prostitution. They accompany them every day. I sincerely doubt they would seek a measure which would endanger women in prostitution by driving the issue further underground, as has been suggested. To honour their great contribution to human dignity, I can do no less than press this amendment.
I concur with Senator Mullen's praise for Ruhama's great work and this side of the House has no issue with it.
This Bill deals with human trafficking. I obtained information from research undertaken by Ruhama that the number of people, primarily but not exclusively women, who have been trafficked into Ireland, is less than 90. I referred to these figures on Second Stage last week. In my view the majority of those people are being sexually exploited. We must endeavour to see the wood from the trees. We do not have as serious a problem as other countries but it is becoming a bigger problem and it should be nipped in the bud. I am inclined to agree that the wider issue of prostitution cannot be dealt with in this Bill and may require another forum. Even one person trafficked is one too many.
Senator O'Toole raised a valid point when he referred to the 1993 Act, which refers to prostitution on a street corner or in a park where a girl may be solicited. However, as Senator O'Toole said, that Act does not provide for prostitution indoors in a brothel or in an apartment rented furtively by pimps who move frequently from place to place, folding their tents and moving on when caught. I ask for clarification on whether there is sufficient legislation to cover the use of a hotel room, a brothel that moves from one part of the city or country to another part. The 1993 Act does not sufficiently legislate for such situations. I ask the Minister of State to reflect on some of the interesting points made on Committee Stage
I repeat that we are talking about human trafficking. I am sitting here because of having met the different groups over the past three or four years. I refer to the religious orders in particular who have been involved in trying to protect women, men and children from human trafficking. The former Senator Mary O'Rourke told the Ruhama group that she would ensure this law was enacted. I want to put this legislation in place and to make it a criminal offence for anybody to be a client of a trafficked person.
Earlier I commended Senator Mullen. However, this latter amendment is impulsive under the circumstances. We need a wider debate on the matter. We have dealt with the 1993 Act. We know about public soliciting by people on the street.
That is not the point. We need to have the entire debate. If we adopted Senator Mullen's amendment without debate and considering the repercussions, what would be the consequences? It is important to discuss it, consider international models and understand what has happened before we impulsively insert this provision. It is sad that the Senator is doing this under this Bill.
I have spoken in a very respectful manner to Senator Mullen and I am sure the Senators who were not here when I was speaking did not hear how I complimented him on what he said earlier. I am entitled to say I do not agree with him introducing this amendment at this stage. We should go back to the Criminal Law (Sexual Offences) Act 1993 and open up that whole debate. Let us have a national debate and a debate in both Houses of the Oireachtas, which is the right way to deal with this legislation.
Senator O'Toole asked about public places, which is defined in the introduction to the Criminal Law (Sexual Offences) Act 1993.
Senator Mullen thought I did not refer to the Swedish Government. I did of course. I referred to the Swedish Government before I referred to the commentary of the anthropologist. The Swedish Government estimates that the number of prostitutes in Sweden has dropped from 2,500 to 1,500 since 1999. I then referred to the comments of the social anthropologist who has studied Swedish prostitutes over a ten-year period. Comments were attributed to a former prostitute and the person who is Sweden's national rapporteur on trafficking.
I emphasised that the 1993 Act makes it an offence to solicit in public for the purpose of sex. That refers to the client, pimp or prostitute. This issue has necessitated a considerable debate on the area of prostitution. To make a major amendment to the Criminal Law (Sexual Offences) Act 1993 through the Criminal Law (Human Trafficking) Bill would involve a considerable consultation process and the Bill would need to go back to Government. We are anxious, as I am sure are both Houses, to have the Criminal Law (Human Trafficking) Bill implemented as soon as possible. Therefore I cannot accept the amendment.
The Dail Divided:
For the motion: 10 (Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Paschal Donohoe, Frances Fitzgerald, Pat Moylan, Nicky McFadden, Rónán Mullen, Joe O'Toole)
Against the motion: 29 (Dan Boyle, Martin Brady, Larry Butler, Ivor Callely, Ciarán Cannon, John Carty, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, John Gerard Hanafin, Terry Leyden, Marc MacSharry, Lisa McDonald, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Ann Ormonde, Kieran Phelan, Phil Prendergast, Brendan Ryan, Jim Walsh, Alex White, Mary White, Diarmuid Wilson)
Tellers: Tá, Senators Rónán Mullen and Joe O'Toole; Níl, Senators Déirdre de Burca and Diarmuid Wilson.
Amendment declared lost.
This is simply a drafting amendment. In the present draft the Short Title and commencement section is at the beginning of the Bill. Apparently, it is more usual to put such a section at the end, as the last section, and that is achieved in this amendment.