Criminal Law (Human Trafficking) Bill 2007: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No.1:
Section 2: In page 4, between lines 21 and 22, the following inserted:
"‘trafficked person" has the meaning assigned to it bysection 5(1).

I move:

That the Committee do not agree with the Seanad in amendment No.1 to the Criminal Law (Human Trafficking) Bill 2007.

Question put and agreed to.
Disagreement to Seanad amendment reported.
Seanad amendment No. 2:
Section 6: In page 8, before section 6, the following new section inserted:
6.—(1) Where, for the purposes of the prostitution of a trafficked person, a person (other than that trafficked person) solicits or importunes another person, including that trafficked person, in any place, he or she shall be guilty of an offence.
(2) A person (other than the trafficked person in respect of whom the offence undersubsection (1) is committed) who accepts, or agrees to accept a payment, right, interest or other benefit from a person for a purpose mentioned in subsection (1) shall be guilty of an offence.
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction to a fine not exceeding €5,000 or a term of imprisonment not exceeding 12 months, or both, or
(b) on conviction on indictment to a fine or a term of imprisonment not exceeding 5 years, or both.
(4) In proceedings for an offence under this section it shall be a defence for the defendant to prove that he or she did not know and had no reasonable grounds for believing, that the person in respect of whom the offence was committed was a trafficked person.
(5) This section is in addition to, and not in substitution for, section 7 of the Act of 1993 in so far as an offence under that section is committed by, or in respect of, a trafficked person.
(6) In this section—
"Act of 1993" means the Criminal Law (Sexual Offences) Act 1993;
"solicits or importunes" has the same meaning as it has in the Act of 1993;
"trafficked person" means —
(a) a person in respect of whom an offence under subsection (1) or (3) of section 5 has been committed or
(b) a child who has been trafficked for the purpose of his or her exploitation.".

I am seeking the agreement of the Dáil to two amendments made in the Seanad to the Criminal Law (Human Trafficking) Bill 2007. Deputies will note that a third amendment appears on the list of amendments and I will explain the reason later to the House.

I need only say a few words on the deletion of section 1 and the transfer of the Short Title commencement section to the end of the Bill. The Parliamentary Counsel informs me that it is customary in a Bill that is not divided into separate parts to put the Short Title and commencement section at the end of the Bill. Apparently, when a Bill is divided into parts, the usual practice is to put the Short Title at the beginning of the Bill, as Part 1. As this Bill is not separated into parts, the Parliamentary Counsel, who drafted the Bill, has recommended that we place the Short Title at the end of the Bill and that is what is proposed in amendment No. 3, which was made by the Seanad and for which it now seeks the agreement of the House.

Sorry, but I do not have the list of amendments in front of me. Can the Minister of State indicate which of the amendments is the substantive one?

I will explain the reasoning behind these amendments. I am aware that there is some confusion in the House.

Deputies will recall that during the Report Stage debate in this House the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, undertook to consider whether it would be feasible to introduce an amendment creating an offence of having sex with a person trafficked for the purpose of sexual exploitation. His caution in committing himself at that stage to such an amendment was the belief that any criminal offence to that effect would have to be credible and enforceable. Placing such a criminal offence in the Bill would have to be more than a sign of society's intolerance and condemnation of persons using the services of those unfortunate persons who were trafficked into Ireland for the purpose of sexual exploitation.

Following consideration of the issues involved in the Seanad, I came to the conclusion that the most appropriate way to proceed was by using a statutory form of words that is well understood by the courts, that is, "soliciting or importuning, for the purpose of prostitution". Lest there be any confusion on the current law on soliciting, I will outline it briefly.

Under section 7 of the Criminal Law (Sexual Offences) Act 1993, it is an offence for any person to solicit or importune another person for the purpose of prostitution. This is essentially a public order provision aimed at protecting our neighbourhoods from the inevitable and unacceptable consequences of soliciting, such as harassment, noise, intimidation and violence, as well as the detritus associated with prostitution. Accordingly, under section 7 of the 1993 Act, the soliciting must take place in a street or public place, as defined very widely in that Act. Any of the persons involved in the public prostitution transaction can commit the offence of soliciting or importuning. This is made clear in section 1(2) of the 1993 Act, which states:

a person solicits or importunes for the purposes of prostitution where the person—

(a) offers his or her services as a prostitute to another person,

(b) solicits or importunes another person for the purpose of obtaining that other person’s services as a prostitute, or

(c) solicits or importunes another person on behalf of a person for the purposes of prostitution.

In other words, paragraph (a) refers to the prostitute, (b) to the customer and (c) to a third party, such as a pimp.

The amendment made in the Seanad, for which I am now seeking the agreement of the Dáil, makes it an offence to solicit or importune a trafficked person for the purpose of prostitution. This offence differs from the existing soliciting provision I have just outlined in three important respects. First, the soliciting can be in any place, public or private; second, the trafficked person who is forced to work as a prostitute does not commit an offence; and, third, the penalties are more severe than for the soliciting offence under section 7 of the 1993 Act.

I do not intend to make extravagant claims for this new offence. It will not be easy to enforce. However, it could be useful in certain circumstances, such as where a trafficked person is forced to operate from a hotel room, a room in an apartment block, where other residents may become aware of what is going on. It may also prove useful in planned Garda raids on brothels from where trafficked persons are compelled to operate. It would be an easier offence to prove than if the offence was worded, for example, "availing of the sexual services of a trafficked person". I thank Deputies Naughten and Rabbitte, who first raised the issue of availing of the services of trafficked persons and I am happy we were able to come up with a workable solution. The Minister gave a commitment on Report Stage that he would take on board the views of both Deputies on this issue.

I thank the Minister of State for the amendments and his explanation. He is correct that the Minister undertook on both Committee and Report Stages to draft an amendment to criminalise those who avail of the services of a trafficked person on the basis that it would send a clear message. I accept this will not be an easy provision to enforce but the offence of trafficking will not be easy to enforce either. That it will be difficult to enforce does not mean it should not be proceeded with.

I read the Minister of State's comment in the Seanad with interest. It is important that he acknowledged, "the provision is not merely a decoration to the Bill that is intended as some form of moral judgment or a sigh of disapproval in respect of those who have sex with a trafficked person. It would be bad law and bad practice to create such offence which would be impossible to enforce but it is the case that this largely applies and extends current laws on soliciting to an area that can be employed specifically to target the users of sexual services of trafficked persons". That is the objective of the amendment we tabled on Committee and Report Stages.

I acknowledge the role of Ruhama in amendment No. 2. The organisation first suggested the tabling of such an amendment and I compliment those involved. There is a clear correlation between supply and demand in all markets. If the demand dries up, the supply is redundant. For example, like most societies, we have sent a clear message that drugs are harmful to individuals. They have been banned and criminal provisions are in place. Prostitution can be as harmful to elements of our society as trafficking. Inserting this provision in legislation will send a clear message from the House.

It is a matter of concern for organisations such as Ruhama and the Rape Crisis Centre which deal with this issue on a daily basis that the people involved in the industry are getting younger and there is a greater demand for young foreign women who travel to Ireland, many of whom, it is strongly suspected, are being trafficked to be exploited.

The amendment proposes that soliciting or importuning a trafficked person for the purposes of prostitution will be outlawed and the person could receive a jail term of up to five years. The objective of the provision is to make it illegal for the beneficial recipient of these services. From a legislative point of view, this will mean for the first time in Ireland someone who avails of such services will be criminalised. A number of Senators felt we were not going far enough with the amendment and the purchase of sexual services in general should be criminalised. On Committee Stage, the Minister stated it is a more complex area, which perhaps should be examined. The Minister of State should consult his senior colleague about an all-party group to examine this issue to establish whether legislation could be introduced in this area. It is not as black and white an issue as some of us perceive it but we are moving down that road with the amendment. Our colleagues in the Upper House would like further provisions in this area. Perhaps now is the opportune time to deal with it.

Historically, the perception was women were punished for this crime. Many engage in prostitution for financial reasons and they may be forced into it through a drug habit or so on. The women who are the subject of this legislation are forced into position as a result of being trafficked by serious criminals who are not only involved in the trafficking of women and children but also the trafficking of drugs and arms. Many of the women become slaves. It has been suggested the legislation is addressing modern day slavery. I hope the amendment will help to significantly reduce the number of people illegally trafficked throughout Europe and that it sends a clear message from this jurisdiction.

The amendment is a significant breakthrough in combating prostitution in general. It is not currently a crime to pay for a prostitute and the amendment, hopefully, will result in prosecutions in this area, which will curb the illicit trafficking of humans. I commend the amendment to the House.

Seanad amendment agreed to.
Seanad amendment No. 3:
Section 14: In page 12, after line 13, the following new section be inserted:
"15.—(1) This Act may be cited as the Criminal Law (Human Trafficking) Act 2008.
(2) This Act shall come into operation one month after its passing.".
Seanad amendment agreed to.
Seanad amendments reported.

A consequence of the acceptance of Seanad amendment No. 3 is that section 1 of the Bill is deleted. Is that agreed? Agreed. Agreement to Seanad amendments other than amendment No. 1 is reported to the House. A message will be sent to Seanad Éireann informing it that Dáil Éireann has agreed to amendments Nos. 2 and 3 made by Seanad Éireann to the Criminal Law (Human Trafficking) Bill 2007. Dáil Éireann has not agreed to amendment No. 1 and desires that Seanad Éireann should not insist thereon.

I thank the officials and the Ministers who dealt with this legislation. They have been very open minded in dealing with amendments and I compliment them on that.

I concur with the Deputy. It is an important Bill, which will hopefully bring us into compliance with our obligations under international conventions. Notwithstanding that not everything we wanted is enshrined in the Bill, it is important, landmark legislation. I thank the Minister of State for his co-operation and his officials for their assistance.

I thank the Deputies for their positive contribution to the legislation. As Deputy Naughten said, there was a lively discussion in the Seanad on the issue we have just debated. The Department is preparing the criminal law (sexual offence) Bill and it will be in discussion with Ruhama and other organisations about potential provisions. This legislation was extracted from that Bill.