Trafficking in Human Beings: Motion.

The proposed framework decision is an initiative of the Swedish Presidency. It follows on from measures already agreed at EU, UN and Council of Europe level. It specifically repeals and re-enacts with additional provisions an EU framework decision agreed in 2002 which created the offences of trafficking in human beings for the purposes of sexual exploitation, labour exploitation or removal of organs. In addition to criminal law provisions there are provisions governing non-punishment and prosecution, investigation and prosecution, victim support, prevention and monitoring.

As members of the committee are aware from the briefing provided the proposed framework decision is, in addition to the 2002 framework decision, also based on the provisions in the Council of Europe Convention on Action Against Trafficking in Human Beings.

As is the case with the other proposals before the committee today, the proposed framework decision is on the agenda of the forthcoming JHA Council Meeting on 30 November and 1 December. The measure was referred to the committee as the intention was that general political agreement on the measure would be reached at the JHA Council next week. We have now been advised by the Presidency that next week will provide an opportunity for the Council to have an orientation debate on the issue. The matter will, in any event, have to be re-examined in the context of the Lisbon treaty provisions. I will obviously revert to the committee again as the measure develops under the Lisbon treaty.

Articles 1 to 5 set out the criminal justice provisions. These mirror the analogous provisions in the original framework decision, with some updating to either bring them into line with other international instruments or go beyond the provisions in those instruments. Many of the provisions are already covered by the Criminal Law (Human Trafficking) Act 2008.

Article 1 defines trafficking in human beings. This definition has been expanded from that contained in both the original framework decision and in the Council of Europe Convention Against Trafficking in Human Beings to include begging or the "exploitation of criminal activities". The latter term is defined in the preamble as exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting and other similar activities which are subject to penalties and imply financial gain. Article 2 mirrors the same article in the 2002 framework decision. It provides that the instigation of, aiding and abetting or attempt to commit an offence of trafficking in human beings is punishable. Article 3 sets out the penalties to be applied by member states. The penalty for the substantive offence is a maximum of at least between five and ten years imprisonment. A maximum period of at least ten years is to be applied in the aggravating circumstances set out in Article 3.2. Under Article 3.3, the offences of instigation, aiding and abetting or attempt must be punishable by effective, proportionate and dissuasive criminal penalties, which may include surrender. Article 4 provides for the liability of legal persons. Article 5 sets out the sanctions to be imposed on legal persons. They are a restatement of the provisions in the 2002 framework decision.

Article 6 is a non-punishment clause. It provides for the possibility of not prosecuting or imposing penalties on victims for their involvement in unlawful activities to the extent they have been compelled to become so involved. The provision is to be implemented in accordance with the basic principles of the legal system in member states. The provision is similar to that contained in Article 26 of the Council of Europe convention. Article 7 deals with the issue of investigation and prosecution. It imposes a mandatory obligation on member states to provide that an investigation or prosecution will not be dependent on a report or accusation made by a victim and allows for the possibility of criminal proceedings to proceed in the event that the victim withdraws his or her statement. Provision is made for the availability of effective investigative tools, such as those used in organised crime or other serious crime cases, for those responsible for investigating or prosecuting trafficking offences. There is a mandatory obligation on member states to train those responsible for investigation or prosecution.

Article 8 requires member states to establish jurisdiction over offences in defined circumstances. The main additional circumstances over and above those provided for in the 2002 framework decision, is that jurisdiction must be established where the offender has his or her habitual residence in its territory, or where the offence is committed against one of its nationals or a person who has his or her habitual residence in its territory. Article 9 provides for assistance and support to victims. Assistance and support is to be provided to victims before, during and for an appropriate time after criminal proceedings. Article 9 contains mandatory provisions in respect of provision of assistance and support where there are reasonable grounds to indicate the person is the subject of a trafficking offence, together with provisions for early identification, in co-operation with support organisations.

Article 10 deals with the protection of victims of trafficking in criminal investigations and procedures. The measures are in addition to any set out in the framework decision on the standing of victims in criminal proceedings. Provision is made for victims to have access to legal counselling and, in accordance with the role of victims in the relevant justice system, legal representation. Where appropriate and in accordance with the basic principles of its legal system, the identity of a victim of trafficking in human beings acting as a witness will not be disclosed. Provision is made for the protection of victims of trafficking on the basis of an individual risk assessment.

Article 11 sets out the general provisions on assistance, support and protection measures for child victims taking account of the best interests of the child. Where there is uncertainty as to the age of a person and there are reasons to believe that the person is a child, the person is presumed to be a child and receives the assistance and protections available to children.

Article 12 provides for assistance and support to child victims of trafficking in human beings. In addition to the assistance and support provided to adult victims in Article 9, member states are obliged to take specific actions in respect of child victims in the short and long term with regard to their physical and psycho-social recovery, following an individual assessment and taking account of the child's views, needs and concerns. Assistance and support is to be provided to the child's family where this is appropriate and possible and when the family is in the territory of the member state.

Article 13 deals with the protections of child victims of trafficking in human beings in criminal investigations and proceedings. These measures apply in addition to those set out in Article 10 in respect of adult victims. They include the appointment of a special representative for the child where the holders of parental responsibility are precluded from representing the child due to a conflict of interest between them and the child victim, or where the child is unaccompanied. Article 13.3 sets out the measures to apply in criminal investigations. They include early interviews in premises designed for the purpose, to be carried out by or through professionals trained for this purpose. Child victims may be accompanied by their legal representative or, where appropriate, an adult of their choice. Interviews may be videotaped and the videotape may be used as evidence in criminal court proceedings according to the rules under national law. In addition, child victims of trafficking may be heard in the courtroom without being present through the use of appropriate communication technologies.

Article 14 covers prevention in terms of discouraging demand. Provision is made for information and awareness raising campaigns, research and education programmes aimed at raising awareness and reducing the risk of people, especially children, becoming victims. The promotion of regular training for officials likely to come into contact with victims and potential victims is advocated. Provision is also made for member states to consider taking measures to criminalise the use of the services of a trafficked victim where the user knew that the person is a victim of a trafficking offence. Article 15 requires member states to establish national rapporteurs or equivalent mechanisms. I thank the committee for its attention and welcome the fact it is here to discuss this.

I thank the Minister for his presentation. Fine Gael will support these proposals. I know the Garda Síochána has made progress on cases in this area. The provisions before us will hopefully strengthen the current legislative basis so that prosecutions take place. Perhaps the Minister can indicate when the first case will be heard before the courts. The Minister mentioned a case in the House last week, involving the trafficking of a child, containing specific provisions focusing on children and unaccompanied children. I ask the Minister to comment on the report by the Ombudsman for Children on the care provided to unaccompanied children in hostel accommodation. They are placed there by the Department of Justice, Equality and Law Reform and the Garda Síochána. It is not acceptable that two out of five children placed in the care of the HSE by the Garda Síochána have evaporated into thin air.

Many of the provisions set out are being implemented on an administrative basis in the Department. Is it the intention of the Minister to ensure that these administrative procedures are backed up by primary legislation in the context of the Immigration, Residence and Protection Bill, or will the legal basis be established in separate legislation?

Regarding the criminal aspect of these measures, some changes are required to existing primary legislation. I refer to the Criminal Law (Human Trafficking) Act of 2008, the existing primary legislation. When does the Minister envisage presenting the amending legislation? What is the timetable envisaged?

The Labour Party supports this proposal. The context has changed and the debate next week will be an orientation debate when the issue will be re-examined in the context of the Lisbon treaty provisions. This provision will be coming back to us. Does the Minister envisage introducing legislation to line up with what may emerge from the ongoing debate?

I thank the Deputies for their support. It is fair to say that much of what is provided for in the document is being implemented on an administrative basis. It will require a change to existing legislation. Under these measures, we have 30 months in which to effect these changes but we will find an opportunity——

Did the Minister say 13 months?

No, 30 months. We will find an opportunity as early as possible to amend the legislation.

On Report Stage of the Immigration, Residence and Protection Bill 2008 we will deal with including the concept of the best interests of the child in its implementation and in the provisions of that Bill. We are already implementing a 60 day recovery and reflection period which will be put into operation on a statutory basis when that Bill is passed. I am aware of the report by the Ombudsman for Children on children in care. The HSE has already closed two of the four hostels that were in operation and intends to close the remainder. It will foster individual children on an interim basis. I do not have a say on what cases go before what courts but I understand that a case is pending in Dublin and that up to five files are with the DPP for decision.

Two aspects of this require changes to primary legislation. The first is the administrative arrangements in place for victims. Up to now the intention was to include these provisions in the Immigration, Residence and Protection Bill 2008. Is this still the intention? The other aspect is to cater for criminal law matters in an amendment to the Criminal Law (Human Trafficking) Act 2008.

To return to the matter of children disappearing from these hostels, I am extremely concerned about the fact that already this year we have lost twice as many children as we did in the whole of last year. They seem to have evaporated into thin air. The Garda Ombudsman was extremely critical of this as was the report of the Ombudsman for Children. While I accept that there is a commitment to put in place different structures by the end of next year, the same replies were given to me this time last year by the Minister of State with responsibility for children and the situation has dramatically worsened in the interim. If we continue to lose children at the rate we have to date, another 70 will have evaporated into thin air by the time the new procedures are put in place — if the HSE delivers on them. These children are falling off the face of the earth; they do not even make it on to the Garda missing children website. What interim measures will be put in place to ensure this disgraceful situation will change?

I outlined what is required under the legislation. The best interests of the child and the arrangements for the reflection and recovery period will be included in the Immigration, Residence and Protection Bill 2008. In recent times, very substantial work has been carried out by various statutory and non-statutory agencies on missing children. No children went missing from HSE care during October 2009. This is a clear indication that the inter-agency co-operation which is taking place is working. The HSE and local gardaí are working together under a joint protocol on children missing from care. Extensive inter-agency work between the Garda National Immigration Bureau, GNIB, and the HSE has begun to show an outcome as monthly figures on missing children have begun to decrease. Joint work between GNIB, local gardaí, crisis intervention and after-hours social services intensified during this year and protocols and collaborative working mechanisms have been agreed to monitor children at the point of intake and in local areas where they are placed. This issue is very much to the fore for the human trafficking unit of the Department and it is pulling all of the agencies together to ensure that the matter does not continue as it did.

I thank the Minister for that. Will he give an assurance that the trend established in October is being replicated in November?

We do not have up to date figures.

I apologise for my absence during a Seanad vote. I also apologise if the matter of the definition of trafficking in the framework decision was already dealt with. It is being extended to include the exploitation of a person to commit pick-pocketing, shoplifting and similar activities such as begging. As is stated in the briefing, some amendments will need to be made to the Criminal Law (Human Trafficking) Act 2008 to provide for this expanded definition of human trafficking. When are these amendments likely to be made? Amendments to assistance, support and protection of victims of trafficking may also be required and debate on this has taken place during discussions on the Immigration, Residence and Protection Bill 2008.

I have answered all that. Amendment of the 2008 Act will be required and under the instrument we have 30 months to make those amendments. However, we will find an early opportunity to make them. We will also amend the Immigration, Residence and Protection Bill 2008 to include the concept of the best interests of the child in children's issues and put into a statutory framework the 60 day period already operating on an administrative basis.

The Clerk has circulated draft reports on all the motions discussed today. Is it agreed that the Clerk will complete the reports with the start and finish times and the names of contributors to the debate? Agreed. I thank the Minister, his officials and members of the committee for their attendance and co-operation.