Criminal Justice (Smuggling of Persons) Bill 2021 [Seanad]: Committee Stage

Before we start into it, there has been a desperate tragedy in the channel between France and the UK. I would like, at the outset, to speak on that appalling tragedy that has unfolded.

It is now thought over 30 migrants have lost their lives tonight. Our thoughts are with their families. It is an awful tragedy and I want to express our deepest condolences on that event.

It shows the dangerous risks people are prepared to take for better lives for themselves and their families. Considering this Bill tonight is about smuggling, it is apt to make a few comments on that.

It is incumbent on the international community to come together in a duty of care to ensure that people are not having to take these dangerous risks but also that we target those criminal gangs that seek to benefit from those people's vulnerabilities and desperate situations.

If I could make mention since the Minister of State has raised the issue, I was unaware when I came in that there had been a tragedy. I had been working in my office.

Last weekend, I went down to the memorial site in Drinagh Business Park because on 8 December it will be the 20th anniversary. Some local people have organised a commemorative event to mark 20 years since that awfulness of opening that truck container in the business park in Drinagh, just outside Wexford town, to find dead bodies, and living people too, in a horror situation. These were people from Turkey and from Kurdistan.

When one sees the names - I mentioned earlier in the passage of this Bill the screams of the relatives when that memorial was opened a year after the tragedy - it is seared in one's memory. As for the fact that is now repeating itself, we just have to do better. When we are enacting laws, we should have that desperation and horror in the back of our minds so that we can do better.

Sections 1 to 8, inclusive, agreed to.
NEW SECTIONS

Amendments Nos. 1 to 3, inclusive, are being discussed together.

I move amendment No. 1:

In page 11, between lines 6 and 7, to insert the following:

"Protection from prosecution

9. A person shall not be considered to have committed an offence under section 6 or 7, where the person engaged in conduct alleged to constitute an offence under section 6 or 7

(a) in order to provide, in the course of his or her work on behalf of a bona fide humanitarian organisation, assistance to a person seeking international protection in the State or equivalent status in another state if the purposes of that organisation include giving assistance without charge to persons seeking such protection or status, or

(b) for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit.".

I had not heard about the tragedy in the channel and I thank the Minister of State for bringing it to our attention.

When this Bill came before the Dáil, I and my colleagues were ready to speak on it. Through no fault of the Minister of State - I was actually in the Chair - the debate collapsed because Members did not show and we did not get to speak on it. That is what happened, through no fault of ours because we were way down the list. I listened carefully to the debate.

I am behind this legislation, the purpose of which is to extend the definitions and the reach in relation to dealing with illegal smuggling of human beings.

However, what concerns me greatly is that humanitarian organisations and people acting in a humanitarian manner are now being penalised and I am seeking to amend that. In this regard, I thank the Senators who did great work in the Seanad.

There was not much discussion at all of the chilling effect of the section in the Bill relating to treating humanitarian organisations and people who act in a humanitarian manner to help migrants who will be now in a position of having to prove themselves. In other words, they will be charged. Is that not correct? This point has not come out. The burden of proof has now been reversed.

The Minister of State, Deputy James Browne, makes a reference to that in his Second Stage speech, stating "To achieve this we have adopted a reverse burden approach ...". I beg the Minister of State's pardon, that does not require the proof. The news of the tragedy has thrown me and my train of thought has gone for a minute.

Is the clock not running?

On Committee Stage, there is a degree of latitude.

Will the Acting Chairman clarify if there is a guillotine on this? Is this coming to an end tonight?

It is not coming to an end tonight.

If the Acting Chairman gives me one second, I will get my train of thought back. I beg his pardon.

I looked at a number of issues and a number of documents. In particular, I looked at the submission made by the Irish Human Rights and Equality Commission. It made a number of detailed submissions which the Minister of State referred to in his speech on Second Stage but which have not been taken on board whatsoever. It said section 9 would have a chilling effect. In its submission on the general scheme - it is still applicable to the Bill - the Irish Human Rights and Equality Commission indicated that the approach taken in the Bill, which provides for humanitarian assistance as a defence rather than an exemption, is not in accordance with international recommendations. It states:

...in practice it means that a person acting on behalf of a "bona fide organisation" or for "humanitarian purposes" will likely be charged with an offence under section 5 [which it was at the time but which is section 9 now], and thereafter it will be for that person to prove their innocence. Accordingly, this will likely have a chilling effect on people providing assistance to people seeking international protection, or people acting on humanitarian grounds.

There are many more matters I could highlight - I will come back to them - but maybe I will sit down and get the Minister of State's response as to why that was ignored by the Government in the context of the submissions. Other submissions were made, but I will return to those. As the commission indicated, it will have a chilling effect.

A young German-Irish person is facing serious charges in Greece. He, along with a young lady, has been facing those charges for a number of years. Both were arrested in 2018. The case was adjourned this week. That is just one example of where someone was trying to help and is now faced with serious charges in Greece. Now here, in the guise of protecting humanitarian assistance, we are actually criminalising the person or organisation involved, which is very worrying. They will be charged and then they will have to show that they are innocent. I will sit down, give myself a chance to reflect and allow the Minister of State the opportunity to reply.

May I make an observation first?

Apologies, in the order I have Deputy Tóibín is ahead of Deputy Howlin.

My apologies, I did not see the Deputy there.

That is no bother at all. First, I wish to add my sympathies regarding the tragedy that occurred in the English Channel today. It was horrific to see it happen. It is so hard to understand that such things are happening in the West in the 21st century.

I agree with Deputy Connolly on the collapse of the debate on Second Stage. We had waited late into the evening to be able to participate but the debate collapsed because Government Deputies did not fulfil their duties and, as a result-----

Sorry, the Deputy should always be ready.

He should stop politicking.

The Government and Sinn Féin made a big play at the start of this Dáil that they should have speaking slots before Opposition parties. Now they are not filling the slots they demanded. As a result, the debates on Bills are concluding much faster and Opposition parties are not getting an opportunity to speak.

The Deputy had his opportunity and did not turn up.

If Fianna Fáil or Fine Gael Deputies want to go home early to their constituencies-----

The Deputy did not turn up. He had his opportunity to speak and he did not turn up. He was not here to take up his speaking slot.

-----they should at least tell people that they are not going to participate in debate. I think that is very important.

This matter is before the Dáil Reform Committee. I would appreciate it if Deputies could speak to the amendment.

Earlier this year, the US State Department's Trafficking in Persons Report 2021 ranked Ireland as a tier 2 watch list country when it comes to human trafficking. Azerbaijan, Belarus and Romania are the only other European countries in that category. Last month, I asked the Minister of State at the Department of Justice, Deputy Hildegarde Naughton, for her reaction to this. She adopted a defensive tone and suggested that the US State Department was ignoring the progress of her Department over the past 12 months. Her view was that as she had dealt with the issue of the fishing industry and the reply she offered stated, "This assessment was fully investigated by An Garda Síochána and no evidence was found to support the allegations of widespread human trafficking in the fishing industry," and observed that "these accusations are without foundation." Those were her words. They were published on the Oireachtas website on 23 September. Just a month later, on 20 October, the Joint Committee on Enterprise, Trade and Employment heard that 35 fishermen had been admitted to the national referral mechanism for human trafficking. The information was disclosed by Michael O'Brien, the head of the fisheries campaign with the International Transport Workers Federation. We know there is a problem in the State. We also know there is major difficulties when it comes to human life and trafficking. We are speaking on a day when human life has been lost. There is a category of people who are involved in trying to protect human life. If a person, from a humanitarian perspective, is involved in seeking to protect human life, they should have no aspersions cast upon them legally as to their motivation. To be under threat of being charged because of their humanitarian response is wrong. Therefore, I support Deputy Connolly's amendments.

This is the one controversial part of the proposals. Like Deputy Connolly, I read the Seanad debate in some detail. Section 9's humanitarian assistance defence, as I said on Second Stage, is of the utmost importance. It would be absolutely unacceptable to anybody in this House, Government or Opposition, if humanitarian organisations or those who were directly involved in providing humanitarian assistance were in any way criminalised. The Minister of State explained in his Second Stage contribution that the reason for the different approach being taken to existing law was the difficulty in proving that someone was involved in trafficking for monetary gain and prosecutions were failing. They were not even being taken, because how do you prove monetary gain? Actual traffickers were getting away. The challenge is to get that balance. Amendment No. 1 provides for section 9(a) should be absolutely acceptable, it seems to me. It states:

A person shall not be considered to have committed an offence under section 6 or 7, where the person engaged in conduct alleged to constitute an offence under section 6 or 7

(a) in order to provide, in the course of his or her work on behalf of a bona fide humanitarian organisation, assistance to a person seeking international protection in the State or equivalent status in another state if the purposes of that organisation include giving assistance without charge to persons seeking such protection or status ...

That seems clear cut and obvious. If a person is working for a bona fide international humanitarian organisation, surely there should be no issue with that?

The second part of the amendment, 9(b) is slightly more problematic so I will tease it out a bit. It states that it shall be done "for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit.” The question is how is that proven. The first part of providing humanitarian assistance is obvious, but I am sure that some of these traffickers would quite readily say that they were providing humanitarian assistance. The issue is how do you get at the criminal gangs who are now putting people in absolute peril and fleecing them for the privilege. Take the awful case in England where so many Vietnamese people died in the back of a truck. The rates charged for that trafficking impoverished a whole community that contributed. These are desperate shocking crimes that have to be punished.

Our job, and we have to tease it out a bit, is to strike the balance between absolutely achieving the objective that Deputy Connolly has set out and ensuring that humanitarian organisations which are providing sustenance and support for people who take desperate measures for no motive other than altruism are protected and in no way criminalised but while achieving that objective not creating a loophole where criminal traffickers who are facilitating death get away because we cannot prosecute them. I would be interested to hear the Minister of State's views on the legislation he has proposed to us and how that balance is struck. Can he give reassurances that the sort of organisations that are sought to be protected under Deputy Connolly's amendment are, in fact, protected under the legislation? Can we strengthen the Bill to ensure that this is beyond doubt in order that the observations of humanitarian organisations including the Irish Human Rights and Equality Commission are fully addressed and assuaged.

I also want to express shock and horror over what has happened this evening in the English Channel.

Given the amount of movement of migrants and the way this has been handled it was more a matter of when, rather than if, that was going to happen. It is just appalling. Tomorrow morning, we will find out the names and we will see faces and there is a different reality when that happens. All we can do at this stage is think of their families who are going to be hearing this awful news.

On this particular amendment, I take the point about achieving balance because I raised the case of Seán Binder when I was speaking on Second Stage. Subsequently, we saw it in the media and saw what he is likely to be facing. We should be trying to protect people who are genuinely trying to provide humanitarian assistance. It is in our DNA to do that. We have significant numbers of very high-profile charities that are well-supported. It is in our DNA because of our own heritage and our own experiences of fleeing this country purely for survival and not just for a better life. We have an obligation to ensure people who want to offer humanitarian assistance and are involved in organisations can do that. The last thing we want is for people to second-guess what they should do when their entire instinct is to provide humanitarian assistance. We want to close off the routes for people who are taking money to traffic people. I know nobody in this House would condone that, support it or want a loophole that would allow that to happen. It is not good enough to allow this Bill to go through without addressing this issue comprehensively.

At the core of this is the notion that there are decent, genuine, generous people who want to help in these situations. As has been said, some of them are members of various humanitarian organisations but they are also individuals who sometimes risk a great deal to help people. We know that happened recently in Afghanistan when people had to be got out of there and there were individuals who risked a great deal to get them out and try to get them to a safe place. We know there are also economic migrants who want to get a place where they can have a better future. God knows, we in this country know that is exactly what so many of our ancestors sought. They went out with their hand out looking for a welcome and in most places they got it. We have an obligation to try to protect people and organisations who want to do that. What has happened in the English Channel tonight is a stark reminder of what faces many of these unfortunate people when they are in that terrible position. It is imperative there is a solution found to that and that we protect both the humanitarian organisations and the individuals who would be prepared to take risks to assist people. It is equally imperative that there is not, as Deputy Howlin said, a loophole that can be used by the unscrupulous groups of criminals to make an awful lot of profit out of human misery.

I thank Deputy Connolly for the proposed amendments. As she pointed out, the humanitarian assistance offence would be reframed as an element of the offence. The burden would be on the prosecution to prove the absence of a humanitarian assistance motive in almost all cases.

The reversal of the burden of proof is a central policy element of the Bill. Our primary motivation for amending the legislation in this area is to increase the effectiveness of criminal sanctions for these offences. The clear advice we received from the Garda and from prosecutors was that the existing framing within the 2000 Act of a requirement for material gain was a major practical block to successfully prosecuting organised criminal smugglers. The reason for that, which I think is widely accepted, is the payment typically will not take place in the State and the smuggled persons may not co-operate with authorities for fear of the consequences for them and for their families at home. Thus, the starting point must be that the existing legislation falls considerably short of providing an effective deterrent to people smugglers. We have sought to strike an appropriate balance that reflects our intention, namely, to focus on for-profit smuggling while not placing an impossible burden on prosecutors. Allowing smugglers to operate without risk of prosecution does not further any humanitarian motive. It places more and more people in the hands of criminal gangs who at the very least will charge exorbitant fees, will likely place the smuggled persons in danger and who may exploit them in the most shocking of ways. The State is not at odds with those providing genuine humanitarian assistance to migrants. We simply have to ensure well-intentioned measures do not unintentionally undermine the criminal sanctions we are putting in place.

Under the EU instruments for assisting entry and transit, we cannot incorporate a blanket element of financial material gain either as an element of the offence or as the defence. We can make provision for humanitarian assistance, as we have done, and we have done so as broadly as possible. In providing for a broad and generally applicable humanitarian assistance defence, we have gone well beyond what most other member states have done. The discretion has been taken up by only seven other states and in many other cases it has been even more narrowly defined.

With regard to where the burden of proof lies, the question is who is best placed to meet it. Let us take entry as an example. The prosecution must prove the accused intentionally assisted someone to enter the State in breach of immigration law and that the accused knew or had reasonable cause to believe the entry was a breach. That is a substantial burden. It is showing that a person intentionally facilitated unlawful entry. If that is proven, then if the accused is claiming he or she was acting for humanitarian motives, it is reasonable to require some evidence of that. On previous Stages, Deputies and Senators have raised how significant a prosecution would be for a humanitarian actor. While I accept being prosecuted is serious for anybody, I do not agree the framing of the humanitarian assistance provision as a defence gives rise to a real risk of unjustified or politicised prosecution in this country. The DPP's office is independent in its functions and it establishes clear and well-understood guidelines on the decision to prosecute. Critically, this states prosecutors should not lay a charge where there is no reasonable prospect of securing a conviction before a reasonable jury. There is nothing to suggest the DPP charges people to make political points or where there is no prospect of a conviction. Given the breadth of the defence as it is drafted, I do not believe there is a real risk of an unjustified prosecution and do not accept that bona fide organisations now find themselves in jeopardy. Similar language has been used in the Illegal Immigrants (Trafficking) Act 2000 and I do not believe there have been any politically-motivated prosecutions under that Act.

I reassure the Deputies what we have sought to do here is put a balance in place where we can secure prosecutions. Without the reverse burden, that has proven effectively impossible. At the same time we are ensuring there is a broad humanitarian defence to ensure those who are acting out of humanitarian motives will have a defence if it becomes necessary for them to do so. Reversing the burden is on the balance of probalities and not beyond all reasonable doubt, so I think that balance has been struck there. The various representations made by a number of NGOs were not ignored; they were all taken into account. However, the strong view from the Attorney General was that we took and incorporated those recommendations where we could but in terms of the reverse burden if we want to get prosecutions of smugglers this is the only effective way to do so.

Is Deputy Connolly pressing the amendment tonight?

I wish to speak to it.

I used the word "guillotine" and I want to clarify there is no guillotine but it is important to say it has to be finished tonight as that is the Order of Business. Is that correct?

I see. In that sense there is a guillotine. We could stay until 4 a.m. but it must be finished tonight. That is most unfortunate.

I understood it could be adjourned at 9.30 p.m.

That is what I understood but when I checked-----

I do not mind adjourning.

To clarify, there is no order of the House to adjourn. The voting block is intended for 9.30 p.m.

However, there is no guillotine motion on this either.

Thus we can simply adjourn the debate.

We can simply agree to adjourn, can we not?

Yes. If we agree to adjourn.

That is good because it would be a burden to stand here, especially after the news the Minister of State has given us.

These are issues that need to be teased out.

On the Minister of State's response to Deputy Tóibín, it was not the Deputy's fault or our fault, but there is no way to be vigilant an hour and a half ahead of time. I was in the Chair and saw what was happening. It should have been teased out at that point and it was not. It was not the Minister of State's fault. He gave his speech but it certainly was not challenged in the sense that it was not discussed or teased out. We are doing it now at this stage, but we need more time to tease it out. I thank Senators Higgins, Ruane and the other Senators who spoke to this amendment, did a huge amount of work in the Seanad and alerted us to this issue. I also thank the Irish Human Rights and Equality Commission.

To put things in perspective regarding deaths, and we have spoken tonight about the tragedy in the channel, the digest tells us - I thank the Oireachtas Library and Research Service for this - that a total of 1,354 migrants have died thus far in 2021, up until tonight, while crossing the Mediterranean. That is just in the Mediterranean. The missing migrants project run by the International Organization for Migration has indicated that migrant deaths on maritime routes to Europe have more than doubled in the first six months of 2021. That is the background to this amendment.

On the Bill itself, a regulatory impact assessment was never published. I might be wrong, but the digest informs us that the regulatory impact assessment was prepared but never published. When we checked further, we found out that only one of the 12 Bills brought forward from 27 June 2020 to 15 September 2021 had a published regulatory impact assessment. I do not know why that is happening.

I will to back to explain why we are tabling this amendment. The Bill has been brought forward under pressure, once again, because of the facilitation package to bring in the EU Council directive, so the specifics and framework are given. The instruments are taken together, they are complementary and are called the facilitators' package. I understand that. Therefore, the person who intentionally assists unauthorised entry, transit or residence of a non-EU national in the EU is to be sanctioned, unless he or she is acting for humanitarian reasons, which is good. However, there is no definition of "humanitarian reasons" in the Bill. To say that person is not being penalised is totally misleading because if someone is charged with an offence, that is a penalty. As it is currently set out, a humanitarian action, whoever does it, whether it is a body, a number of people or those acting individually, as seems to be the case with the two young people who are being charged in Greece, is being penalised. People will be charged with very serious offences that have a very serious penalty and they will have to prove their innocence. There is no presumption of innocence but one of guilt, which is a major change in the law and one without proper scrutiny.

We are implementing a decision and a directive, along with a UN protocol, which we signed up to almost 21 years ago but still have not ratified. That is important. This Bill will enable us to ratify that protocol, or the Bill will be the ratification of the protocol, subject to the Minister of State's clarification, but it has taken us 21 years to ratify it. That was plenty of time to look and see what the problems were. There is more than a nuanced difference between the EU instruments and the UN instrument. The latter puts a clear emphasis on the rights of people being smuggled. It seeks to protect those people and their rights, whereas the emphasis of the EU decision and directive we are implementing is to protect borders. That is my interpretation and the interpretation of the accounts I am reading. That is an important difference when we look at what we are doing. If we accept that background and the difference between the UN protocol and the EU directive, although there is overlap between them and different articles set out different things very clearly, the ultimate aim of the protocol is to protect the person being smuggled. The ultimate aim of this directive and decision is to protect the border. It is very important to protect our borders, but we should do it in a manner that is just, fair and proportionate. I do not think that is what is happening when we put the burden on a humanitarian organisation or individual to prove they have not committed a crime. I have a major difficulty with that.

The absence of data also jumped out at me as did the absence of prosecutions under the Acts we have in place since 2000. That is clearly set out for us in the digest. There were two prosecutions. I understand there is a difficulty in seeing a successful prosecution through, but that is no reason to swing the other way and put the onus on the humanitarian organisation. That is what has happened here. The Minister of State talks about balance but the Government has not balanced the situation, which is difficult because we have no data. We know that. We have no data on the number of people coming in or going out, the number being trafficked and the number of children lost along the way. I have a letter from Tusla I might come back to regarding children disappearing. We have no data collection, which has been pointed out by the Irish Human Rights and Equality Commission, as it has the absence of a mechanism to identify somebody who has been smuggled and who is, therefore, entitled to rights. This is not a criminal but someone entitled to be protected, as set out in the UN protocol, as opposed to protecting a border.

Deputy Connolly makes a very strong point. There is a need to fix an obvious problem with the existing legislation. It has again been indicated, and the Minister of State indicated in his speech on Second Stage, that only two prosecutions for smuggling have happened in the past 20 years. That is preposterous. If that is correct, it is a clear indication our laws in this regard need altering. The question is how we ensure those who are exploiting and smuggling people for profit are prosecuted to the extent of the law to prevent tragedies, such as the awful one that has unfolded this evening, while at the same time, from listening to what the Minister of State said, protecting individuals with bona fide organisations who are engaged in humanitarian work not only from being convicted - Deputy Connolly is correct on this - but from being prosecuted. Fear of prosecution is a real and chilling issue.

I think the Minister of State has said that is his intention. In his speech on Second Stage he said that the section 9 humanitarian assistance defence:

provides that it ... [will be] a defence to prove on the balance of probabilities that the conduct ... engaged in for the purpose of providing humanitarian assistance, otherwise than for ... obtaining, directly or indirectly, a financial or material benefit.

We accept that is the Minister of State's intention, but the problem is he is putting humanitarian assistance in as a defence once the prosecution has actually commenced. We can do two things. I do not see how there is any resistance anywhere, including from the Government, to automatically exclude from being criminalised in any way, even from fear of prosecution, people who are working for a bona fide humanitarian organisation.

If we exclude anybody who, in the words of the amendment tabled by Deputy Connolly, "in the course of his or her work on behalf of a bona fide humanitarian organisation, [is providing] assistance to a person seeking international protection", that is a major first step.

Then we have to deal with Deputy Kenny's point about individual actors who are motivated. How do we prevent them from being prosecuted? I am interested in the Minister of State's view on that. How far can we go to ensure they are not prosecuted, and therefore do not have to deploy the humanitarian assistance defence, without jeopardising the Minister's intention of ensuring we can prosecute the traffickers? Would the Minister of State take the first step by accepting that anybody who is working for a humanitarian organisation and in the course of their work provides humanitarian assistance is excluded from the provisions of these sections? Then we might spend some time seeing how we can strengthen the protection for individuals who are motivated to give humanitarian assistance not out of any material consideration but simply out of humanitarian consideration.

There are a number of issues there. I will take Deputy Howlin's point. If one excludes from prosecution anybody working for a bona fide organisation and if such a defence is raised, the prosecution will have to prove a negative - that somebody was not part of a bona fide organisation. It is almost impossible for a prosecutor to prove a negative. It would make it extremely difficult. I will deal with the definition first. The reason we have not defined humanitarian assistance is that it is almost impossible to find what that definition would be. One will either end up with something that is too wide and could be widely abused by smugglers to come under that umbrella, or something that is too narrow. One cannot predict each and every organisation, event or circumstance. One will end up with people being prosecuted and convicted even though, to many of us, they may have come under the category of general humanitarian assistance.

We have to trust our courts and juries to be able to assess humanitarian assistance, if it gets that far. To be prosecuted, the DPP has to form an opinion that there is sufficient evidence to bring a prosecution. It will not do so where there is no reasonable prospect of securing a conviction by a reasonable jury. That is the first hurdle. Initially, the DPP will have to decide under its criteria whether to bring a prosecution in the first place.

The second hurdle arises where the prosecution will have to prove the elements of the offence. If the prosecution succeeds in that respect, it is then open to the person to claim humanitarian assistance as a defence. That is provided for in sections 9(1)(a) and 9(1)(b). At that point, the person can argue as a defence that he or she was operating for a bona fide organisation or otherwise, under section 9(1)(b), which refers to engaging in this activity "for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit."

There are several steps to be navigated before anybody acting in this way could potentially be convicted. It is a similar situation and similar language is used in the Illegal Immigrants (Trafficking) Act 2000. I am certainly not aware of any cases of humanitarian organisations or people acting out humanitarian actions having difficulties created for them or being prosecuted or convicted under that Act. We have not seen any such situations.

It is not a presumption of guilt and we need to be clear on that. It is not presuming somebody to be guilty. If it was, this would be unconstitutional. This legislation, like a number of pieces of our law, is reversing the burden of evidence. It does so on the balance of probability. It reverses the burden of evidence in circumstances in which the people who have access to that evidence are the people who are best placed to be able to provide it. It has proven impossible in the cases of smuggling for the prosecution in this country to be able to get the evidence to prove money has changed hands in third countries or whatever the case may be. We have seen that. There have not been convictions in this country.

This has not been entered into lightly. It has been thought of very carefully, but if we are to get convictions against people who are smuggling and taking advantage of very vulnerable and desperate people, we need to reverse the burden. Reversing this burden will not in any way put genuine bona fide NGO humanitarian organisations or those individuals at risk. We have seen that through the Illegal Immigrants (Trafficking) Act 2000 and its operations.

We are satisfied with the balance that has been struck. We need to get prosecutions of those who are smuggling because of how they are taking advantage of vulnerable people. That is how we are looking at it. From the perspective of the DPP, the elements of the offence must be proven and then it is only on the balance of probabilities that the reverse burden kicks in.

With regard to the length of time taken to implement this, there has not been a 21-year delay in ratifying it. There was a conscious decision, for a very long time, not to act on or implement these European Union laws. We have now decided to do so to meet our Schengen Information System, SIS, II requirements, since we have decided to come under that. There has certainly not been a 21-year delay. There has been a conscious decision not to participate in this up until now.

Why was there a conscious decision not to do so? I fail to grasp why there was such a decision for almost 21 years. Do we not sign something with a view to ratifying it, unless we have to take certain steps in the meantime? We are ratifying it 21 years later.

In order to answer that question, I would have to give the opinions of previous justice ministers and governments, which I cannot do.

I thank the Minister of State for the correction. I agree with him. With the reversal of the burden of evidence, the Minister of State is trying to sort out a problem with existing legislation; namely, the failure to have prosecutions. However, we have nothing before us on why that failed and what the problems were. There is nothing here to tell us what the issues with that legislation are, other than that there is an absence of prosecutions. We are dealing with that problem while putting the burden on people and organisations that can ill afford to come forward when they are faced with a prosecution. It does not make sense to me.

I again thank those who compiled the digest. In 2020, in the context of the new pact on migration and asylum, the Commission adopted a guidance document. What was the guidance document for? It was aimed at clarifying that the facilitators' package, which was the directive and the decision that has led to this Bill, should not be interpreted in a way that allows humanitarian activities mandated by the law to be criminalised. That is, in effect, what we are doing here. We are criminalising those involved in humanitarian actions. It specifically says in the guidance document that this should not happen.

Obviously, this must have been discussed in Europe, because it provided the 2020 guidance document which states specifically that it should not be interpreted in a way that allows humanitarian activities mandated by law to be criminalised. The directive does not provide an explicit definition of humanitarian assistance, and nor does the Bill before the House. Some examples provided in the European Parliament's 2018 study on the criminalisation of humanitarian assistance to irregular migrants - there has been quite a bit of research and analysis of all of this - include such a provision. This is helpful in thinking about what a definition could be.

It could include the provision of services that help migrants to access their fundamental rights, including to healthcare, shelter, hygiene and legal assistance, and to live with dignity, or any action guided by the principles of humanity, solidarity, impartiality and independence. There is a distinction between humanitarian and related objectives and economic and financial objectives. There is a working definition for what a humanitarian action is.

It has not been teased out enough. I do not doubt the bona fides of the Minister of State but law should not be based on reassurances. Laws should be clear in their purpose and effects. They should be reviewed regularly, which comes to other amendments for another night, when we look at a built-in review. I could not see myself agreeing to this amendment in any way. It has to be teased out. It deserves more attention. Members were caught out by the way that the debate happened. We did not get an opportunity to tease this out. I would not even say that there is nuance. It is blatant if the burden to provide evidence is on the humanitarian organisation or the person carrying out humanitarian acts. We need more and more of those people and organisations, from what we see with the build-ups on borders in Europe, the European Border and Coast Guard Agency, Frontex, and the money that is going into it.

I think I am out of time.

There is a provision to guillotine this, which was agreed at the Business Committee. If the Minister of State wishes to adjourn now so that we can proceed to postponed divisions, we can do so.

I propose that we adjourn the debate.

Is that agreed to? Agreed.

Progress reported; Committee to sit again.