Vol. 169 No. 17
I move:
That Seanad Éireann approves the exercise by the State of the option or discretion provided by Article 1.11 of the Treaty of Amsterdam to take part in the adoption of the following proposed measure:
A proposal for a Council framework decision on combating trafficking in human beings,
a copy of which measure was laid before Seanad Éireann on 7 February 2002.
This motion comes before the House as a result of advice I received last December from the Attorney General when dealing with proposals for a framework decision on a European arrest warrant and a framework decision on combating terrorism. The practice established by that advice is that Dáil and Seanad motions approving framework decisions are necessary and, accordingly, I am bringing forward the motion.
The motion was discussed and approved at a meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights on 20 March 2002. The full subject matter of the motion I am bringing before this House today is a draft Council framework decision on combating the trafficking of human beings for the purposes of labour and sexual exploitation. While expressed in gender neutral terms, the vast majority of persons trafficked across international borders, or within countries, for such purposes are women but may include a not insignificant number of children.
Trafficking for the purposes of the exploitation or prostitution and other forms of sexual exploitation, forced labour or services, or practices similar to slavery or servitude, is not new. It was recognised in legislation as far back as the Criminal Law Amendment Act, 1885, which made it an offence to procure a girl to leave this country to become a prostitute. However, to some extent it has crept up on us in Europe in recent years, in particular since the opening of the Iron Curtain. For example, ECPAT, an organisation dedicated to ending child prostitution, pornography and trafficking, in a recent publication quotes police forces in the UK as estimating that the first signs of this form of trafficking were detected about ten or 11 years ago in the UK. Literally millions of women and children have been and continue to be trafficked worldwide and while the Irish share of that may be tiny, we may be a receiving country for victims of trafficking, even though on a relatively small scale.
To give some idea of the current scale of the problem of trafficking, the United Nations has estimated that it is a $5 billion to $7 billion operation annually, with four million persons moved from one country to another and within countries. Some of the world's most familiar criminal groups are involved in trafficking which is not surprising given the vast amounts of money to be made from it. The trafficking can take many forms, the most obvious being the movement of women from central and eastern Europe, the Far East and Africa to work in the sex industries of western Europe and other wealthy and industrialised countries.
Many if not most such women are duped or coerced into prostitution and remain in prostitution through a combination of fear and threats as well as lack of knowledge of how to seek help in what for them are strange countries. Other forms of exploitation include the mail order bride industries and sex tourism. Children are often the victims of sex tourism, in particular in parts of Asia where children as young as eight years of age are sold to recruiters and end up in brothels catering to international sex tourists.
That is just a flavour of the scope, criminality and degeneracy of the appalling crime of trafficking. It is a global crime, an organised crime and a lucrative crime. Therefore, it has to be dealt with on an international basis. To do so it will be necessary for countries to have broadly similar criminal offences. The penalties should be of sufficient severity to adequately reflect the seriousness of the crime and cross-border police co-operation and judicial co-operation generally should be promoted.
I wish to briefly outline relevant legislation in this country that protects children and other vulnerable groups against sexual abuse and exploitation, and the relevance of that legislation to the fight at international level against exploitation. Even before I was appointed Minister for Justice, Equality and Law Reform, I published the Sexual Offences (Jurisdiction) Bill in 1995, which was backed by the then Government and became the Sexual Offences (Jurisdiction) Act, 1996. That Act dealt specifically with the problem of international sex tourism. The Child Trafficking and Pornography Act, 1998, made it an offence to traffic children into, through or out of Ireland for the purpose of their sexual exploitation and criminalised the possession, production and distribution of child pornography. In doing so, it gave effect to the EU joint action on trafficking in human beings and the sexual exploitation of children, except in so far as the trafficking aspects related to adults. I will explain the reasons for that exclusion in a moment. The recent Sex Offenders Act provided children and other vulnerable persons with a comprehensive package of protections against sexual abuse and attack, including the establishment of a sex offender register. Sex offenders from abroad are obliged to register with the Garda Síochána as are sex offenders living in this country when travelling abroad.
I mentioned that the 1998 Act did not deal with trafficking in adults for the purpose of their exploitation. The reason was that that legislation was specifically aimed at protecting children – the protection of adults was outside its aim and scope. The intention had been to legislate later to protect adults against being trafficked for the purpose of their exploitation. However, in December 1998, the UN General Assembly established an ad hoc committee on the exploration of a convention against transnational organised crime. One of the protocols to the convention, which was negotiated at the same time as the convention, dealt with trafficking in persons, especially women and children. In December 2000, in Palermo, I signed that convention and protocol on behalf of Ireland. Shortly after that, in February 2001, the proposal for a Council framework decision on combating trafficking in human beings was presented. Negotiations on the framework decision were ongoing throughout last year. The final text is now available and is ready for formal adoption as soon as all parliamentary scrutiny reservations have been lifted.
The framework decision replaces the joint action I referred to a few moments ago in so far as it concerns trafficking in human beings. A separate framework decision, still being negotiated, dealing with the sexual exploitation of children and child pornography, will replace the remainder of the joint action.
I will now outline the purpose and terms of the framework decision on trafficking. A need was identified to follow the joint action concerning action to combat trafficking in human beings and the sexual exploitation of children, with further action aimed at addressing the divergence of legal approaches in the member states and contributing to the development of efficient judicial and law enforcement co-operation against trafficking in human beings. It is now universally accepted that such trafficking constitutes a serious violation of human rights and human dignity and involves ruthless and unacceptable practices such as the abuse and deception of vulnerable persons, as well as the use of violence, threats, debt bondage and coercion. Dealing with the problem requires a comprehensive approach in which the definition of constituent elements of criminal law common to all member states forms an integral part.
Article 1 of the framework decision creates a criminal offence concerning trafficking in human beings for the purposes of labour exploitation or sexual exploitation. Criminal acts will include acts such as the recruitment, transportation and reception of a person for the purpose of exploiting that person's labour or services, including forced or compulsory labour or services, slavery or servitude, or for the purpose of sexual exploitation, including prostitution, pornography or other forms of sexual exploitation.
For an offence to be committed there must have been coercion, force, abduction, deceit, fraud, abuse of authority or of a position of vulnerability or the making of payment or giving of benefits, to achieve the consent of a person such as a parent having control over another person. Where any of the above means have been used, any consent given by the victim is irrelevant and where the victim is under 18 years of age, none of the above means need have been used.
Article 2 ensures that the instigation of, aiding or abetting or attempting to commit an offence under article 1 are also offences. Article 3 sets out the penalties. The penalties for offences under articles 1 and 2 should be effective, proportionate and dissuasive criminal penalties which may be extraditable, that is, have a minimum penalty of at least six months imprisonment. There are circumstances where the penalties would have to include a maximum term of imprisonment of not less than eight years. These include where the life of the victim has been endangered through deliberate action or gross negligence; the victim was particularly vulnerable, such as when under the age of sexual majority or consent; serious violence was used or serious harm caused to the victim; and the offence had been committed within the framework of a criminal organisation.
With regard to the circumstance of particular vulnerability, the age of consent in this country is 17 years. The above penalties may seem lenient when compared to the level of penalties for analogous offences in Irish legislation. For example, trafficking in children for the purposes of sexual exploitation carries a maximum penalty of life imprisonment. The penalty structure is a compromise between the high and low penalty countries but in no way affects our ability to provide for higher penalties if we so wish.
Article 4 is a standard provision in framework decisions concerning the liability of legal persons or corporations and article 5 ensures that legal persons can be punished by sanctions that are effective, proportionate and dissuasive.
Article 6 deals with the requirement to establish jurisdiction where the offence is committed in whole or in part within a member state's territory, where the offender is one of its nationals or where the offence is committed for the benefit of a legal person established in the territory of that member state. Optional jurisdiction arises in the latter two cases where the offence is committed outside the territory of the member state.
Article 7 contains important provisions aimed at protecting victims and offering them assistance. Investigation into or prosecution of offences will not be dependent on the victim reporting the crime or making accusations against another person. Children will be considered particularly vulnerable victims for the purposes of the relevant articles of the framework decision on the standing of victims in criminal proceedings. Article 4 of that decision concerning the right to receive information will apply to the families of child victims.
Article 8 obliges member states to comply with the framework decision within two years of its adoption, and article 9 repeals the relevant provisions of the 1997 joint action.
I recommend the proposal to the House. It provides for a co-ordinated and comprehensive response to the growing problem of trafficking in persons for the purpose of their labour or sexual exploitation. It will require legislation to implement and preparatory work on that legislation has commenced in my Department.
I support this motion and look forward to legislation being presented to the House so that effect can be given to its terms. As a member state of the European Union and as a member of the United Nations, we must deal with this matter. Over the past ten to 15 years, the level of human trafficking in Europe, including the exploitation of women and children in particular, has risen appallingly and this country has not remained untouched by it. Various reports have highlighted the trafficking of women between England and Ireland for purposes of prostitution. Equally, the abuse of children in this country is continuing. While the motion deals with trafficking in human beings between countries, in our country we have seen the abuse of children, particularly the homeless who live on the streets of Dublin. The Department of Justice, Equality and Law Reform must monitor this situation intently to ensure that such children receive the necessary protection. I appreciate that the Sex Offenders Act affords some protection to children but, nevertheless, children who are most vulnerable remain so. The Minister should liaise with the Garda Síochána to ensure that this will not continue to be the case.
The figures the Minister has laid before the House are astounding, particularly the UK statis tics which indicate an increase in human trafficking. A UN report has estimated that between $5 billion and $7 billion is spent annually on combating human trafficking which involves over four million people worldwide. At the start of the 21st century, we are supposed to be living in an advanced, civilised world, yet we seem to be regressing as far as the dignity of human beings is concerned. It would appear that the more vibrant an economy becomes and the more affluent people are, the more abusive they are towards the underprivileged and deprived. Vulnerable women and children should not be subjected to such appalling abuse. The type of criminal gangs involved, who resort to fear and intimidation to achieve their ends, deserve to receive the full force of the law in every country that has signed up to this protocol. No one has a right to take away another person's individual dignity, independence and integrity. The perpetrators of such crimes must be pursued with the full rigour of international law.
Children are being moved around in this country and health boards are finding it difficult to track their movements. I am sure the Minister knows that there are few towns in this country where children are not being abused, and that continues to be the case. Signing up to framework decisions is highly commendable, but for it to be fully effective and to be implemented fully the personnel need to be put in place.
What is being done to stop these gangs who traffick people between England and Ireland? What have the Minister's colleagues in the European Union done to effect this framework decision? Apart from signing up to it and incorporating it in legislation, what additional personnel have been put in place to ensure it is effected? I am not aware of any and unless those personnel are put in place, the framework decision will not be implemented.
A huge amount of American money is obviously used in this operation. What discussions has the Minister had with the American Government and the people in the equivalent department to his on this issue? A massive amount of money is generated by people flying from American to Asia for the purposes of using and abusing children there. This must be condemned and outlawed. How will those children in Asia be protected from the wealthy Americans and Europeans who go to Asia to use and abuse them? I am not sure how this protection might be given and I wish the Minister would put some detail on record in this regard.
I look forward to the legislation which will be produced as a result of agreeing to participate in this framework decision. The increase in the trafficking of humans is appalling and deserves to be condemned. It removes a person's dignity. Women are subjected to considerable intimidation by pimps and criminal gangs who ferry them in to this country from England or who fly them in through Dublin and other airports. They are set up for weekends in Dublin and other parts of the country to provide prostitution services. The pimps reap the reward.
What are the Garda authorities and the Minister's Department doing to protect these women and to stop the men who bully and intimidate them into the set-up I described? How many arrests and prosecutions of these men have there been in Dublin city in the past two to three years? Let us hear the record. We need action and, while this framework decision is a welcome step in the right direction, I want details from the Minister about how successful his Department and the Garda authorities have been in rooting out this crime.
I hope the Minister will be able to put on record in his reply what he proposes to do to protect prostitutes. Legislation in this area is extraordinary in that prostitutes are prosecuted and the pimps go free. When gardaí make arrests in this area, it is of prostitutes. Have pimps been arrested, pursued through the courts and prosecuted? In most instances women are forced onto the streets or into various establishments in Dublin city and towns throughout the country. They are bullied and beaten by pimps to enter and remain in prostitution to make money for these ruthless men. The Minister has a responsibility to ensure these ruthless people are brought to justice.
I welcome the motion and congratulate the Minister on what he has done. The Bill we passed yesterday will prevent people entering the country without proper documentation, and I congratulate the Minister on bringing it in. I could talk about the subject of this motion for a long time but I will not make a speech. The motion the Minister has brought to the House says everything we want it to and I am delighted that there will be a life sentence for those caught trafficking. I would like that to mean imprisonment for the rest of their lives without a review and not just for 21 years. These traffickers are violent, evil criminals and must be put out of business at all costs. The Minister will introduce follow-on legislation from this motion which we will discuss at a later stage. I welcome the motion and congratulate the Minister on bringing it before the House. I am sure it has the support of all Members.
I am sure the motion has the support of all Members. This issue concerns an extraordinary development in recent decades. I sincerely hope the unfortunate abuse of modern technology, the Internet and e-mail is being carefully policed because this is where a considerable amount of trafficking deals take place. I understand the trade is worth more than trafficking in drugs, which is incredible. People not only come from behind the old Iron Curtain countries of Moldova, Ukraine, etc., but also from Africa. If the Minister is ever in Italy, he will notice the appalling spectacle of African girls left in lay-bys for the day for the benefit of truck drivers and others going past. A considerable number of them have paid people to come to Italy in the belief they would get jobs. Their families are blackmailed if they do not co-operate in the trade. It is a difficult issue.
Senator Taylor-Quinn raised the lack of protection for prostitutes in this country. One of the problems for the trade created by the legislation is that it has forced it indoors. Prostitutes felt safer when they were on the streets because they had the option of choosing clients, whereas they must accept whoever turns up at these massage parlours, as they are described. As Senator Taylor-Quinn said, prostitutes do not make large amounts of money from the trade, rather it is pimps who do so.
One concern about people coming to this country and being coerced into prostitution is that work permits for non-EU nationals are held by employers. That gives them a terrible hold over the employees. People are required to work for one employer. If the work permit was given to the person coming into the country, he or she would be in a position to choose their employer. The system at present means an employer has a tremendous hold over his or her employees. I do not have evidence that the system has been abused, but I am less than happy with it. Perhaps the Minister might ask his officials to discuss this with the Minister for Enterprise, Trade and Employment and her Department to see if they have evidence that it has been exploited.
The Minister mentioned ECPAT. We should praise Muireann Ó Briain, the lawyer at the head of the organisation in Bangkok. It was she who first got me involved in this issue and encouraged me to bring my Private Members' Bill on child sex tourism before the House about eight years ago. We have not been too slow off the mark in this area, even though we are on the periphery. I hope the Minister's Department will bring forward the necessary legislation as soon as possible.
I welcome the opportunity to speak in this debate on the proposal for a framework decision on combating trafficking in human beings. The matter remains to be fleshed out by way of legislation in due course and I sincerely hope that, at that stage, effective measures will be taken in this regard and that we will have a legislative framework to ensure traffickers will be caught and punished. The existing legislation on trafficking in human beings, which was enacted a few years ago, has not been very effective and that also applies to similar legislation in other European countries. To the best of my knowledge, no trafficker has ever been convicted in this country, although we know they operate here. I was rapporteur for the Council of Europe in a report on trafficking in human beings for domestic slavery and the findings were quite extraordinary. The major problem is that the authorities in most countries tend to regard victims of trafficking primarily as illegal immigrants. In many countries, this places the victim at risk of being subjected to an expulsion measure. Indeed, our existing legislation allows the Minister and the relevant authorities to enforce expulsion from this country. In some countries that status deprives them of all legal, social and even medical assistance. I do not know if that also applies here. However, it is quite clear that people who are brought here by illegal traffickers have no other status than that of illegal immigrants. That is how the Government and the Minister's Department regards them.
In some countries, the situation is so bad that illegal immigrants hesitate to report the serious offences perpetrated against them because they know that, while the traffickers might possibly be convicted, the migrants themselves are virtually certain to be expelled, even though they are simply victims of the situation. I suggest to the Minister that the relevant legislation, when it is brought forward, should recognise the victim status of those people and that, on humanitarian grounds, they be given temporary residence if they are willing to give evidence against traffickers. Our legal systems should be so well integrated that a trafficker could be convicted in a French court on the evidence of a person trafficked into Ireland. Our current legislation does not provide for that. The Minister and I have clashed on that issue previously; we have fundamentally different views and approaches to this issue of migration and the definition of victims and culprits. Obviously, the relevant new legislation will not be enacted in the present Oireachtas but it must happen in the next one, whoever may be Minister for Justice, Equality and Law Reform in the next Government. Whether the present Minister has any influence in that context, from the Opposition benches or otherwise, I hope the approach I have advocated will be taken.
In my report for the Council of Europe, I was surprised by the evidence that came forward about trafficking in human beings by people in the diplomatic services of certain countries. It is an extraordinary situation that there are people working in embassies in various European countries, perhaps even in this country although I have no evidence to that effect, who have been trafficking workers as domestic slaves, while hiding behind the Vienna convention of 1961 which provides a system of privilege and immunities for members of the diplomatic corps. The purpose of such privileges and immunities is, of course, to protect diplomats from pressures which might be brought to bear against them by the host state. Staff of international organisations, such as the United Nations and its agencies, also enjoy such privileges and immunities as laid down in the agreements concluded with the receiving state or in the organisation's statute.
Article 31 of the Vienna convention stipulates that diplomatic agents shall enjoy full immunity from jurisdiction, criminal, civil and administrative and from enforcement measures in the host state. At the same time, diplomats' persons and property are rendered inviolable under articles 29 and 30 of the agreement. These privileges are extended to diplomats' spouses and even to their minor children. There is clear evidence of abuse of this diplomatic immunity in the context of trafficking people to work in servitude in embassies and diplomatic residences in many European countries, including France and the United Kingdom. As I said, I have no evidence that it is taking place in Ireland but, since it is so widespread in other European countries, I would not be surprised to find it happening here to some extent. While there is great difficulty in relation to the Vienna convention and the diplomatic immunity which it confers, we need to question its role in the trafficking issue to which I have referred. The meanest of criminals are profiting from this vile trade. The Minister's comment coincides with my finding that some four million people are trafficked every year, a majority of whom are women. It is quite appalling that diplomats should have any part in that activity and that it has, by all accounts, the sanction of certain countries, mainly in Asia and Africa. That aspect of human trafficking has not been sufficiently highlighted.
I hope to be in one of these Houses when the relevant legislation comes forward.
Many Senators have similar hopes.
The legislation should not be just a measure against traffickers but should also have regard to their victims, who should not be regarded as simply illegal immigrants to be expelled. If we are to tackle traffickers effectively, we need the evidence of their victims and we should create the conditions whereby temporary residence permits would be available to these people in consideration of their evidence. They should have that minimum protection in the host countries, including Ireland.
I am glad this proposal has been promulgated by the European Union and that all member states are now expected to legislate accordingly. I hope the Irish legislation will be along the lines I have indicated.
Senators asked what is being done at European level to prevent trafficking. As recently as 28 February, the Justice and Home Affairs Council of Ministers approved an action plan to combat illegal immigration and trafficking into the European Union. This is a comprehensive plan which is aimed at defining a common, integrated approach to all the questions linked to illegal immigration and human trafficking. The plan identifies seven areas where this is necessary, including visa policy, exchange and analysis of information, re-admission and repatriation policies, free frontiers, measures relating to border management and Europe-wide penalties.
I was also asked what is being done to deal with pimps. The Sexual Offences Act, 1993, provides severe penalties for persons who coerce or compel persons into prostitution and also criminalises living off the earnings of prostitution. The example which was given of what is happening in Italy illustrates the type of situation with which this framework decision deals. With regard to existing anti-trafficking legislation, this was based on an EU joint action which is now considered inadequate to deal with the problem, hence the need for this framework decision and the legislation that will flow from it. In drawing up the legislation we will look at the position of victims, in particular in the context of the EU framework document on the standing of victims in criminal proceedings.
Before we take No. 10 I wish to draw attention to some printing errors on the Order Paper. The word "resolves" on line 24 of page 204 of the Order Paper is misspelled and the name of the Leader of the House who tabled the motion has also been left out on page 207. In page 205, line 7 of the Irish text of paragraph (f) the name should read Edward Moss. These have been corrected on the Supplementary Order Paper which has been circulated containing Senator Taylor-Quinn's amendments. Senator Paddy Burke's name should also be added to those amendments.
