Tuesday, 28 May 2013
Criminal Law (Human Trafficking) (Amendment) Bill 2013: Report and Final Stages
I move amendment No. 1:
I thank the Leader for allowing us latitude in bringing forward these amendments. What I am seeking here is information. Subsection 1(a)(d)(ii)(I) of the Bill refers to an activity in a place other than the State which "constitutes an offence under the law of that place and would, if done in the State, constitute an offence". I am concerned that this might facilitate a loophole in respect of certain activities, particularly organ harvesting. I understand the latter was covered by regulation a year ago, as I learned from the very helpful advisers to the Department. I am concerned, however, that there might be some confusion in this regard.
In page 4, between lines 2 and 3, to insert the following:"(I) constitutes a felony under Irish law or involves the harvesting of human organs,".
In respect of the reference to an activity in a place other than the State which constitutes an offence under the law of that place, might there be some barbarous practice which does not constitute an offence in a particular jurisdiction? I do not know, for example, whether organ harvesting is an offence in China, where it seems to be a fairly widespread practice. Whether it is illegal or not, there is no doubt that it is happening. In this context, does the reference to "would, if done in the State" refer to the same state that was referred to in the previous line, namely, a foreign state? It should be absolutely clear that if such action constitutes a serious crime in this country, whether or not it is regarded as a felony in a foreign state, then it will be subject to the criminal law in this country where a practitioner of that activity comes here or where people are availing of his or her services.
As I said, I have a particular concern in regard to organ harvesting. I have a liver problem which may require a transplant at some point in the future. Nevertheless, I would blanch at the notion of going into a hospital in Shanghai, for example, and asking if one of the inmates of the local prison whose tissue is compatible with mine might be bumped off. The very idea is appalling. I am seeking reassurance in that regard in these proposals and I hope the Minister of State will be able, courtesy of his advisers, to offer it. I realise it is not his particular brief, but I am sure he will be able to explain whether my amendment is justified even from my own point of view, regardless of whether the Government is prepared to accept it. I am hoping for clarification, in short, that a heinous outrage against humanity and decency, whether or not it is an offence in the country where it takes place, will be so regarded in this country and, as such, that we will be in a position to take measures against any perpetrators of that activity who come to this country.
I second the amendment. I await the Minister of State's response with interest. Although I expect there will be reasons that he will not be able to accept the amendment, Senator Norris's contribution gives us all pause for thought in regard to our interaction with China in the context of that country's treatment of its prisoners and the harvesting of organs across the prison system. We have developed very strong economic links with China in recent years. In fact, it could be argued that the relationship is getting so close that there is almost a danger of becoming overly-dependent.
As part of our ongoing economic dialogue with China, we should not forget that there must be a human rights dimension to that engagement. Specifically, we should use our evolving relationship to bring about, in so far as a small country like Ireland has a capacity to exercise such influence, an improvement in the human rights situation in that jurisdiction. Our two countries are geographically distant and much of the information we have about China comes from media reports. We have heard of dreadful scenarios where prisoners are being selected for organ donation against their will, with some jails being apparently almost like organ supermarkets.
We are morally obliged to speak out about this. Irrespective of whether our condemnation has any impact, we should at least engage with the Chinese authorities to express our concerns. China is deservedly admired for the huge developments that have taken place there in the past 70 or 80 years. Its people are no longer suffering from famine and the total poverty that existed 100 years ago. Some of that economic progress, however, has come at a huge human rights cost. We must promote the balance between economic advancement and human rights. In so far as we can put any degree of moral pressure on China on an issue like this, we must not hesitate to do so. I ask the Minister of State to speak to his colleagues in the Department of Foreign Affairs and Trade and the Department of Jobs, Enterprise and Innovation about this issue. Our efforts to develop the Irish-China market must not ignore the human rights dimension. Without taking from the progress the country has made, until such time as human rights in China are on a par with human rights in the western world - setting aside the debate on what precisely constitutes human rights - and Chinese citizens have full human rights and freedoms, there will be a stain on our relationship. We should encourage China in so far as we can to advance its human rights agenda. We cannot force a change in attitude on the issue of involuntary organ donation, but we should at least note it.
Amendments Nos. 1 to 3, inclusive, are linked. The first is the substantive proposal, with amendments Nos. 2 and 3 arising out of that amendment. While the Minister for Justice and Equality understands that these proposals are well motivated, they are unnecessary. One of the specific purposes of section 1 of the Bill is to add the trafficking of persons for criminal activities to the scope of exploitative conduct criminalised by the Criminal Law (Human Trafficking) Act 2008. This will facilitate full compliance with Directive 211/36/EU. In line with that directive, criminal activity is defined in the Bill as an activity that is "engaged in for financial gain or that by implication is engaged in for financial gain".
Iteration 11 of the directive states that the expression "exploitation of criminal activities" should be understood as referring to the expectation of a person to commit, inter alia, pick-pocketing, shoplifting, drug trafficking and similar activities that are subject to penalties and which apply financial gain. This is a non-exhaustive list of criminal offences which includes minor as well as more serious offences. The type of criminal activity a trafficker is likely to force a victim to engage in can constitute serious criminality such as drug trafficking or a minor offence such as pick-pocketing or shoplifting. That is the case whether the victim is trafficked for criminal activities in this State or another state.
As currently drafted, subsection 1(a)(d)(ii) of the Bill is consistent with the non-exhaustive nature of offences covered by iteration 11 of the directive. The construction includes minor and more serious offences and automatically includes harvesting of human organs. The removal of organs without consent or for payment is an offence under EU regulations on the quality and safety of human organs intended for transportation, as set out in SI 325 of 2012. These regulations give effect to Directive 2010/53/EU of the European Parliament and of the Council of 7 July 2010 on the quality and safety of human organs intended for transportation.
Under the regulations made by the Minister for Health, it is an offence to traffic, harbour, import or export organs contrary to the regulations and the directive. The regulations set out a framework encompassing the establishment of competent authorities, the authorisation of transportation centres and the establishment of conditions of procurement and systems of traceability. Consequently, in the context of human trafficking for criminal activities, there is no need for a specific reference in the Bill to the harvesting of human organs.
Section 7 of the Criminal Law (Human Trafficking) Act 2008 addresses the issue of extraterritorial jurisdiction in terms of prosecution of human trafficking offences. These provisions will extend to the Bill, when enacted, including the offence of human trafficking for criminal activities. Section 7 of the 2008 Act provides that where a person who is an Irish citizen or ordinarily resident in the State does an act in a place other than the State which, if done in the State, would constitute a human trafficking offence, he or she shall be guilty of an offence. Similarly, section 7 provides for extraterritorial jurisdiction where a person does an act in respect of an Irish citizen in a place other than the State which, if done in this jurisdiction, would constitute an offence. In the circumstances amendments Nos. 1 to 3, inclusive, are unnecessary and I call on the Senators to withdraw them.
The Minister of State has given a clear explication of the Bill and the impact of previous legislation. I am now satisfied that my concerns can be allayed in this matter. This is very welcome and I am pleased the matter has been explained. I had made a note to query if SI 325 of 2012 applied in Ireland. The Minister of State has made it clear that these provisions do apply. The position on the concerns I had that were not specified in the Bill has now been made clear.
I thank my colleague and friend, Senator Paul Bradford, for his intervention and moral support. It is a delicate matter because we are being overwhelmed by trade delegations and visits of friendship and love from various sections of the Chinese establishment. One has to be wary and keep the balance in pushing human rights. This is important, particularly since the Department of Foreign Affairs was renamed the Department of Foreign Affairs and Trade. We must ensure the trade element does not overwhelm the human rights element.
One must also be wary in the most courteous way possible of Chinese delegations. I met a delegation a few days ago to discuss the situation in Tibet. Only one person spoke, the leader of the delegation, who was a Han Chinese and whose address was in Beijing. There were two people dressed in Tibetan costume as part of the delegation. I am unsure whether they were Tibetans, but in any case they were not allowed to speak. That was rather interesting and it illustrated precisely the problem in Tibet, where there are people whose stooges are not even allowed to comment. When asked directly by the Chairman, they said they agreed with their leader. This clearly illustrates the desperate plight of the people in Tibet.
I share the admiration of Senator Paul Bradford for the Chinese people, their immensely ancient and wonderful culture and capacity to survive. He referred to the famines of 100 years ago, but we need not go back 100 years. The Tibetologists, as they describe themselves, referred to the fact that food was sometimes scare before the invasion of 1959. That may have been the case, but they did not suffer the extraordinary famine Mao Tse Tung inflicted on them with his great leap forward, which was simply a great leap into a chasm for the many millions who died of starvation. This is perhaps a rather long-winded way of thanking the Minister of State. I also appreciate the comments of Senator Paul Bradford and I am happy to withdraw the amendments. The Minister of State has certainly satisfied my concerns.
I move amendment No. 4:
This, again, is a concern. I was horrified to see the return of an exhibition of dead bodies in the Rotunda Hospital. It was heavily advertised and approved of on radio and television and in the print media. I regard it as rather repellent. I watched the public autopsies carried out on television by a German professor. They were certainly interesting and, I dare say, for medical students they might have been of some value. However, when one is exhibiting the dead bodies of human beings, one needs to be sensitive. Recently, when I spoke about this issue in the House, I remarked on the fact that only next door in the National Museum of Ireland outrage had been expressed from some quarters about the exhibition of the bodies of bog people which had been excavated, although I am unsure how genuine it was. Their bodies had been preserved in some cases for more than 1,000 years. It was suggested they be given a Christian burial, although they might not have been Christian. I reckon that is a rather academic argument.
In page 6, between lines 11 and 12, to insert the following:“4.--The trafficking in human cadavers shall be limited to such medical or bona fide medical and scientific purposes and in circumstances where such cadavers are exhibited for educational or entertainment purposes and/or for gain the proprietors of any such exhibition shall be required to furnish DNA samples of each of the exhibits in order to prevent the criminal use of such material thereby providing for the discovery of the identity of the deceased person.”.
If people are promoting and bringing throughout the world, certainly throughout Europe and America, exhibitions of dead bodies, the provenance of which is uncertain, one is certainly touching a raw nerve in terms of respect for human beings. I have tabled the amendment because of concerns, despite the statements made, perhaps in good faith, by the proprietors of this commercial enterprise, that they are actually the bodies of people taken from China who were down-and-outs and had been found on the streets. I do not believe credible evidence was produced that this was not actually the case. It remains a suspicion that these may be the bodies of individuals whose lives were terminated for one reason or another, including profit, by the prison authorities with the connivance of the regime. I am asking that where there is such an exhibition, especially for gain, or even for education, because it was claimed that this was an educational exhibition, at the least we ask the promoters to provide DNA samples. This would not damage the exhibits.
It seems ghoulish to call them former human beings, but I imagine I can call them this, like the famous ex-parrot in the sketch on television. It would not damage the cadavers because the amount of material to be taken would be minute. At least, if we had DNA examples, it would mean the corpses would ultimately be traceable. In China traditionally they have had a reverence for the dead which has not been extinguished by communism or the ridiculous system of capitalism they now have, as well as a reverence for the human body. The families concerned would know, once and for all, if it was their family members who were being exhibited. They could then reclaim the bodies and give them a decent burial. The cadavers are not 1,000 or 2,000 years old; they are the bodies of people who, undoubtedly, have living relatives. They should be treated with respect and we have an opportunity to ensure this will take place in this country, in particular.
Once again, I look forward with great interest to hearing the explanation and response of the Minister of State who was able to demonstrate convincingly on the first amendments that the concerns expressed were addressed in other legislation. It is possible that these concerns are addressed also, but there i no mention of anything like this in the Bill. I am, therefore, keen to hear what the Minister of State has to say.
I think what Senator Norris is alluding to is some of the concern expressed publicly when the Bodies exhibition was touring Ireland. There was more than a suggestion that the provenance of some of the bodies on display was deeply suspect. Senator Norris is to be congratulated for putting forward this and the previous amendment.
There is no doubt that what we would regard as normal and good human practice is not necessarily that followed in other jurisdictions. It is obviously a matter about which we need to be concerned so that we do not find ourselves accidentally and unintentionally lowering our own standards in some way that we would regard as unacceptable if we had given it more consideration. I was struck by the aspect of the Bill that includes extra-territorial measures, which is to be welcomed. It does reflect some of the extra-territorial measures introduced in the female genital mutilation legislation which we passed last year.
At some levels, human beings and their bodies are being treated like a sideshow. That is repugnant to the ordinary Irish person. We have to be careful too that when we talk about educational or entertainment purposes we distinguish between what would be regarded as educational and what would be regarded as entertainment. I would certainly draw a significant distinction between those two.
Unless of course the Minister can show it is entirely unnecessary, I support the spirit of Senator Norris’s amendment. However, in the context of educational purposes, is it possible to provide the DNA evidence required as suggested in the amendment? Will the Minister address that question?
This is an interesting amendment. The spirit in which it is proposed will be taken into consideration. In this world of social media, Senator Hayden is correct in saying that we should not lower our standards, even unintentionally. It concerns me sometimes, with the explosion of social media, that society’s standards are moving in the wrong direction. This is an informed contribution made by Senator Norris and I hope it will be reflected in the final draft.
The Minister fully understands the motivation behind this amendment and the concerns of Senators Norris, Barrett and others arising from the recent Bodies exhibition in Dublin. However, the Department of Health is preparing legislative proposals for a human tissue Bill which will provide for the regulation of the public display of bodies or body parts. It is envisaged that the proposals would include a licensing system for the public display of human bodies or body parts. Persons wishing to import bodies or body parts for public display will be required to have documentary evidence of their origin, evidence of consent from the donor for the proposed use and evidence of compliance with the legal requirements of the country of origin of the bodies or body parts. These legislative proposals are expected to be brought to the Government for approval later this year. In the circumstances, I am sure Senators Norris and Barrett will understand that this is not a matter relevant to the remit of the Minister for Justice and Equality. Perhaps the Senators will consider withdrawing this amendment.
I thank my colleagues for their moral support in this matter. I value what Senator Hayden said but with regard to the point about educational purposes, perhaps I should have used the phrase “purported educational ... purposes”. Even so, it is such a minor procedure to take a DNA test. Accordingly, it would not be too excessive to ask for one, even where a display purports to be educational. The proprietors of these exhibitions always describe them as educational, but everything is educational if it needs to make a profit. That is my concern and I was not really thinking of genuine educational displays. However, there could even be a mistake with the sourcing of cadavers in such situations. One can go back to the days of Burke and Hare and the corpse stealers.
I am happy with the Minister's reply. I take it the preparation of the human tissue legislation means it is a firm commitment and that it will be introduced by the end of the year. On that basis, I am prepared to withdraw this amendment. While I do not see why we cannot put it into this legislation, and it would be good for the Seanad, there has been a Government ruling that it will not accept it. It has given an undertaking to this House that this will be dealt with in other legislation. I take it as another example of the Seanad being helpful and supporting the Government in what is a necessary move. I was not aware the Government intended to introduce such legislation but it is excellent that it is prepared to license these exhibitions and look for consent from the donors. There may well be people who would consent. Some people are exhibitionists in life; some are prepared to be exhibitionists post mortem. I shall have to consider my own position in this matter very carefully.
The Minister has satisfied my amendment. Like The Skibbereen Eagle, Seanad Éireann will be keeping its eye on the Department of Health to see if it will produce this legislation by the end of the year. If not, we will morally reprove the Government for breaking its promise. I am grateful to the Minister and to his advisers for providing this useful information, which is very welcome indeed. It may well be the result of the fact that several people raised this matter in the House when no one else did.
On a point of order, the Minister stated this amendment was not relevant to the nature of the Bill. Sinn Féin’s amendment No. 5 was ruled out of order on the same grounds. The point I am making is that we were allowed to debate amendment No. 4 but we are not allowed our amendment No. 5.
I support Senator Ó Clochartaigh. As I said the other day, it is possible to rule out any amendment tabled in the Seanad on the basis that it causes an expense to the Exchequer. The very printing of an amendment causes an expense. This is utter nonsense. When we reform the Seanad, I hope we will do away with this absurdity-----
I welcome this important Bill and we had a good debate on all Stages. I am disappointed that we went through serious issues on Committee Stage which were not dealt with by the Government in subsequent Stages. We hope it will return to these in the future, particularly the issue of assistance given to people who find themselves trafficked into this country who may need extra legal help and social supports.
We look forward to future legislation that will bring us closer to implementing the full EU directive, No. 36 of 2011, as we outlined on Committee Stage. While the Bill is to be welcomed, the Government could have taken on board more of the positive points we made on Committee Stage. It could have introduced its own amendments on Report Stage and made this an even better Bill than it is at present. Táimid ag tacú leis an mBille. Táimid sásta go bhfuil sé ag teacht tríd na Tithe.
I am grateful to the various Ministers and, in particular, their advisers, who were most helpful during the debate on this Bill. They clarified matters and allowed us to ventilate them to our satisfaction. I think it was a good day's work. I am grateful to the Leader for giving us an opportunity to have these amendments discussed.
On behalf of the Minister for Justice and Equality, I thank Senators for their contributions to today's debate, their co-operation and their understanding. The Bill was initiated in the Seanad and will now progress to the Dáil. It was mentioned on Second and Committee Stages that a small number of matters are still being considered. In particular, issues relating to the video recording of child interviews to be used as evidence in criminal proceedings are being examined. It was not possible to introduce official amendments today. They will be introduced in the Dáil and returned to the Seanad for consideration in due course. I thank the Seanadóirí and the Cathaoirleach for their co-operation.
I would like the Minister of State to try to seek an undertaking from his colleagues in this regard. In the future, when Government amendments that are consequent on Seanad debates are being considered, those amendments should be registered with the Seanad in the first instance, rather than going to the Dáil, so it is clear to the public that this House is doing its work.