Before commencing with the Bill, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Also, on Report Stage each amendment must be seconded. A list of the grouped amendments has been circulated. All other amendments will be discussed individually. Amendments Nos. 1, 5 and 7 are related and will be discussed together by agreement.
Criminal Law (Human Trafficking) Bill 2007: Report and Final Stages.
Amendments which I introduced on Committee Stage created an offence of soliciting or importuning a trafficked person for the purpose of prostitution. I am advised by the Parliamentary Counsel, who drafted the amendment, that the definition of "trafficked person" used in those amendments might — I would not put it any stronger than this — give rise to some confusion as to the meaning of "trafficked person". By deleting the meaning of "trafficked person" used in the Committee Stage amendments for the purpose of the new Section 6 and redrafting the meaning given to that term in Section 6, any such confusion can be removed.
Briefly, as previously drafted, the trafficked person who was solicited for the purpose of prostitution could be interpreted as not necessarily being the trafficked person in respect of whom an offence was committed under section 5. I recommend this drafting amendment to the House.
Amendment No. 3 arises out of Committee proceedings.
I move amendmentNo. 3:
In page 4, between lines 35 and 36, to insert the following:
3.—The Minister shall promulgate a code of victim's rights in respect of victims of trafficking which shall address the following issues:
(a) protection of private life of victims;
(b) appropriate medical assistance to victims;
(c) secure accommodation;
(d) recovery and reflection period (minimum 3 months);
(e) temporary residence permit (minimum 6 months);
(f) translation and interpretation facilities where necessary;
(g) access to counselling and information services, in particular, as regards legal rights, in a language that can be understood;
(h) access to legal aid;
(i) right of access to education for children;
(j) right to access social welfare benefits as necessary;
(k) voluntary repatriation and return of victims;
(l) facilitating access to the asylum process;
(m) special protection measures for child victims;
(n) family reunification;
(o) right to work;
(p) right to access vocational training and education; and
(q) compensation and facilitating legal redress against traffickers.”.
I apologise, I do not have the relevant papers in front of me. Perhaps the Cathaoirleach will bear with me while I get them. Amendment No. 2 is almost identical to amendment No. 3 except in respect of subsection (d) which deals with recovery and reflection periods in the context of a code of victims’ rights in respect of victims of trafficking. Subsection (d) of amendment No. 3 proposes we provide a minimum of three months in respect of a recovery and reflection period whereas subsection (d) of amendment No. 2 proposes a period of 30 days in that regard.
This matter was discussed at length in the Dáil and on Committee Stage in the Seanad. We are proposing that for us to take an approach to the issue of human trafficking that is truly focused on the victims we must seek not alone to criminalise those who traffic persons but to identify the problems created by trafficking in the round and to look at the suffering of people who are trafficked in terms of their specific needs.
I accept this legislation is but one aspect of the Government's response to the issue of human trafficking in accordance with its obligations under various international conventions and agreements and that the expert group in the Department of Justice, Equality and Law Reform may well have recommendations to make about the specific rights that should be made available to persons who are victims of trafficking. However, the Labour Party and I are united in believing we should not take it for granted that somebody somewhere down the line will provide for such rights, needs and entitlements. Rather, they should be enshrined in legislation. This is the minimum we can do when we consider the awful phenomenon of human trafficking and how friendless these victims are. When one considers that persons trafficked into this country may well have been coerced, abused and violated, do not necessarily speak the language of the host country and have no friends to whom they may appeal, one begins to get an idea of just what a lonely place they are in and how vulnerable they may be. This is all the more reason we should seek to set out clearly the rights and entitlements to be made available to them.
I ask that the Government reconsider taking on board this proposal to ensure this is not just legislation punitive in terms of those who traffic but proactive in terms of providing for the legitimate and undeniable needs of victims of human trafficking.
I second the amendment. As pointed out by Senator Mullen, amendment No. 3 is as close to identical as can be to amendment No. 2 save that Senator Mullen has improved on what is proposed in the latter amendment. I do not suggest Senator Mullen has changed our proposal, rather the version he has put before the House is a better one in terms of the periods referred to.
I recall the Minister saying in respect of many of the provisions proposed in the amendment that they are issues that do not require to be addressed by way of legislation. I have considered this as a rationale for their not being included in the Bill and I do not believe it is a particularly good answer. As Senator Mullen stated, legislation has the potential to assist significantly in easing the plight of victims of trafficking. I understand from where the Minister is coming when he says some of these matters do not require to be addressed by way of legislation. The Minister or a speaker from the Government side stated at the outset of the debate on Second Stage that we needed to take a holistic approach to this serious problem. The criminal measures proposed in this Bill deal only with part — though I accept it is a substantial part — of the problem. The Government needs also to consider the rights, entitlements and protections that ought to be put in place in respect of victims of trafficking.
There was much agreement across all parties on Committee Stage in respect of what is being proposed here. I recall that while several speakers on the Government side were supportive of this proposal, they were unable to support the proposed amendment. That is a pity. An opportunity remains for them to deal with this issue in a holistic fashion. The various subsections proposed by amendment No. 3 are humanitarian proposals. They relate to the type of medical assistance or accommodation that ought to be provided in any civilised society for people who are victims of trafficking.
The recovery and reflection period referred to is vital in a holistic approach to the problem. The issues of residence permits and so on are also vital, as are the provision of translation and interpretation facilities, the provision of all of which we would expect to be associated with this measure being introduced. While I strongly support the thrust of the Bill, it is wanting in this important regard. I ask the Minister of State at this relatively late stage to reconsider the regrettably hardline approach the Government has taken to exclude the possibility of inserting into this important legislation these protections for the victims of trafficking.
I support this amendment and the previous one proposed by Senator Kelly, which it mirrors. As I said on Committee Stage, there is a lacuna in terms of the protection of the victims of trafficking. It is suggested that this will all be dealt with in the immigration Bill, but that does not deal with the position of people who are trafficked, particularly from Eastern Europe, which accounts for, as the figures suggest, the majority of people who are brought to this country. There is a gap in the Bill. The Minister of State should reflect on the amendments proposed. Not taking account of the victimisation of those who are trafficked in the provisions of the Bill means it is faulty.
I thank the Senators for making those points on these amendments. As previous speakers said, the amendments have been debated in great detail in this House on Committee Stage. The argument basically boils down as to whether the protection of victims and supply of services to them should be dealt with statutorily and administratively. There is no difference between us in our concern for victims and ensuring they receive proper protection and are in receipt of the necessary State services and those provided by non-governmental organisations, where appropriate.
However, from some of the comments made in earlier debates, there may be some confusion as to Government policy on this issue. I take this opportunity to clarify exactly what we are doing, where our initiatives in this respect are being accommodated and the benefits that will accrue to the people concerned.
There are three separate but interconnecting strands to the Government's strategy. The first strand is the Bill we are debating, which deals comprehensively with the criminal law aspects. Where it is possible to offer protections through the criminal law, that has been done, as can be seen mainly in sections 11 to 12, inclusive. That is what this Bill purports to do and I have no hesitation in saying it does it well. Second, most of the persons trafficked into our country would be from outside the European Union. Therefore, immigration issues arise in some cases. Those issues are included in the Immigration, Residence and Protection Bill, referred to by Senator Regan. That Bill includes a "no strings" attached period of recovery and reflection of 45 days and renewable six monthly periods of temporary residence where the victim is co-operating with an investigation. It was never stated that immigration issues in the Immigration, Residence and Protection Bill would apply to anyone other than non-EU nationals, as it is only in such cases the question of residency arises. The third strand in our holistic approach, as referred to by Senator Alex White, to combating human trafficking is the drawing up of a national action plan in accordance with the requirements of the Council of the European Union conclusions on trafficking.
Our difference in approach from that of the Senators who proposed the amendments and spoke on them is one of strategy. All victims of trafficking will benefit from our strategy, whether they are from the European Union or from outside it. I said previously that a new anti-trafficking unit, under the leadership of an executive director, has been established in the Department of Justice, Equality and Law Reform to drive the discussions on the action plan. This surely illustrates our determination to put a plan in place as soon as possible to ensure that the protections offered to victims of trafficking and the services to which they will be entitled can be on a properly focused and co-ordinated footing. The interdepartmental high level group met no later than yesterday in regard to these issues.
I hope our strategy is more clear in meeting the challenge posed by trafficking in human beings. It is a multifaceted problem which must be addressed at several levels from creating the offences, enforcing the laws, increasing public awareness of trafficking, international co-operation in what is a transnational crime and protection of victims to ensuring that our immigration laws are no impediment to treating victims generously and humanely.
I have stated my case as to how victims should be protected and receive appropriate services. Clearly, not everyone agrees with it and, presumably, there may be a suspicion that administrative services will never be supplied. In answer to such an argument, I can point to the anti-trafficking unit in the Department of Justice, Equality and Law Reform, which has been established and which will draw up the national action plan recommended in the European Union conclusions on trafficking. I can also point to Government policy on ratifying the Council of Europe convention. Failure to implement the provisions relating to victims would mean we could not ratify the convention. I mentioned previously that there is a strict monitoring procedure attached to the Council of Europe convention.
While an enabling provision such as that proposed in the amendments might look good, it would not bring forward by even one day a more cohesive policy on the provision of services to victims. I reiterate that I am as concerned as the Senators who spoke on these amendments to ensure that the interests of victims of trafficking are protected. I am convinced that the strategy I outlined on how we intend to vindicate those interests is the most appropriate. I mentioned the unit established in the Department of Justice, Equality and Law Reform, the national action plan and the interdepartmental high level group. We have put in place the agencies that will deliver the services in advance of the legislation going through this House. That clearly demonstrates that we are determined to ensure that those victims get the assistance, services and help they need and that they will be dealt with in a proper and humane way, as they rightly deserve being the unfortunate victims of such malpractice.
Is Senator Mullen pressing the amendment?
Amendments Nos. 4 and 6 are cognate and they may be discussed together by agreement.
I move amendment No. 4:
In page 5, line 3, after "child," to insert the following:
(c) supplies or avails of the services of the child which the child has been trafficked to provide, knowing or having reasonable grounds to believe that the child was trafficked,”.
I do not propose to press amendments Nos. 4or 6.
Amendments Nos. 8 and 14 are related and may be discussed together by agreement.
I move amendment No. 8:
In page 8, between lines 8 and 9, to insert the following:
6.—(1) Where for the purposes of the prostitution of a person, a person (other than the person being prostituted) solicits or importunes another person, in any place, he or she shall be guilty of an offence.
(2) A person (other than the 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.”.
I second the amendment.
This proposal was discussed extensively on Committee Stage. Senator O'Toole's amendment No. 14 is admirably expressed and seeks to bring about the same result, which is to orient our law towards full protection of the dignity of the human person, particularly in respect of persons engaging in prostitution. I outlined extensively on Committee Stage the reasons that we should take the law in this direction. Efforts to target those who engage in the trafficking of persons cannot be divorced from the issue of demand, that is, the end users who seek to avail of the services of persons in prostitution. The latter increasingly include those who are trafficked for this purpose.
I listened to a debate yesterday on the "Today with Pat Kenny" radio show between Geraldine Rowley of Ruhama and a person speaking for those who characterise themselves as sex workers. Ruhama has been admirably vocal in advocating legislation akin to the Swedish model which provides that persons in prostitution are people to be protected. Moreover, it sees those who avail of the services of persons in prostitution as exploiters and abusers who seek to violate the dignity of another person by purchasing the use of his or her body and who damage the fabric of society by contributing to the continuation of highly negative and exploitative attitudes towards women.
I was critical on Committee Stage of the Government's reluctance to take on board the point that we should criminalise the users of persons in prostitution not just because it might in some cases lead to successful prosecutions of users but also because the law is clearly an educator. This point was denied by implication when it was suggested that the law should not concern itself with moral issues. I note in recent days, however, that the Government is anxious to present alcohol abuse as a moral issue in which the law should seek to be an educator, to regulate behaviour and to point the way for society. I refer to the Taoiseach's article in theSunday Independent and subsequent discussion. The Government seems unwilling to accept that the law can have a similarly beneficial approach if it criminalises the users of persons in prostitution.
It has been argued on previous Stages in both the Dáil and Seanad that to criminalise the users of persons in prostitution might have the unintended effect of driving prostitution further underground and forcing women — for it is mostly women we refer to when talking about people in prostitution — into more dangerous situations and do little to prevent the noxious trafficking of human persons. I pointed out that this has not been the Swedish experience. The Swedes criminalised the use of persons in prostitution in 1999. They have not only not repented of that course but are quite evangelical in advising other countries to follow suit. Moreover, far from driving the problem of prostitution and trafficking further underground, the Swedish authorities claim there has been a vast reduction in the number of persons in prostitution on the streets and that while thousands of people are being trafficked into neighbouring countries for work in the so-called sex industry, the figure for Sweden runs only to the hundreds.
The same Norwegian report which suggested that the criminalisation of users might have the unintended effect of driving prostitution further underground showed that the Dutch experience, which was to make prostitution almost completely respectable and above ground, did nothing to prevent the development of an unhealthy and sinister underground prostitution system and that the authorities there now regret the approach they took. It makes sense that criminalising users will ensure we do not create another potential strategy for those who would traffic persons into the State for work in the sex industry. A certain amount of this has gone underground already and will remain so as long as we have the Internet and mobile telephones. These new technologies represent a phenomenon that is difficult to police. We should not make it more difficult by creating a massive disincentive for the potential user. That point was all but acceded by the person representing the so-called sex workers on RTE Radio 1 when this person accepted there would be a reduction in numbers. Representatives of persons working in prostitution oppose legislation according to the Swedish model. One might expect such opposition from some people who are engaged in this industry, whatever the misery involved.
I said on Committee Stage that I suspect the arguments which have been thrown up against criminalising users as I have proposed mask other arguments that people dare not ventilate. We had the argument that prostitution, as the oldest profession, has always been with us and that there are women in prostitution who are there as a matter of choice. It has even been argued that a minority of errant and criminal gardaí might seek to blackmail people. However, one could say of any criminal law that somebody might seek to blackmail a person by making a false accusation. Among the Garda sources with whom I have been in contact directly and indirectly and who have been involved in policing criminality in the sex industry, there are those who see no problem with the criminalising of users. They believe it would act as a deterrent.
Why is no action being taken in the interests of human rights? Why is the Government citing only one side of the argument? When I asked the Minister of State, Deputy Smith, on Committee Stage about the social anthropologist whose view the Government was putting forth to support its case, I was given the name of Petra Östergren. It is disappointing that the Government seems to be basing its arguments on the views of a person who may well be professional but is in the pro-sex worker category. This suggests a reluctance to engage in fresh thinking. Ms Östergren is a Swedish writer and social commentator who admits that the women who are at the centre of prostitution policy are rarely heard and often feel discriminated against. No doubt she is correct in that.
She has also stated, however, that most of the sex workers she has interviewed reject the idea that there is something intrinsically wrong with their profession or that they should be subjected to therapy or retrained. This is a type of libertarian, pro-choice attitude to prostitution, taken on board by this Swedish writer and social commentator, who may well be a social anthropologist, and quoted at first anonymously and then named by the Government.
Nobody was quoted anonymously in this House. That is inaccurate.
The Minister of State is correct. It was in the Dáil that she was referred to merely as a social anthropologist. When I asked him to identify her, he kindly did. I do not seek to equate the devil with the Government in reminding Members of Shakespeare's observation that the devil can cite scripture for his purpose. It is easy to create a cloud of misunderstanding or ambiguity by saying there are people on both sides of this argument. I remind the Minister of State that Ruhama, which has the best record of caring for persons in prostitution, is clear about what it wants. It wants this legislation to criminalise the users of persons in prostitution. It argues that such a law is needed in the interests of the people in question and for the sake of civil society. Ruhama does not believe we should continue to have such an unhelpful and negative attitude towards women.
I am interested to note that countries near Sweden have been rethinking their positions, although no unanimous position has been reached. While not everybody in Norway is satisfied to follow the Swedish model, which has been in force since 1999, some Norwegian political parties are giving consideration to developing their law in accordance with that model.
I wonder whether the Government has a serious interest in fresh thinking on this issue. The Minister has said that the Department of Justice, Equality and Law Reform is keeping the laws on prostitution in other countries under continuing review. How has the Department carried out that review? Whom has the Department consulted? Has it consulted Ruhama and the women who use Ruhama's services? What conclusions have been reached on foot of the Department's legislative review?
We need to bear in mind how enormously the prostitution and sex industry scene has changed since this country's most recent legislation in that regard was introduced in 1993. The advent of mobile telephones and Internet technology, etc., has made it easier for users to access people in private, away from the streets. Therefore, it is now all the more desirable to introduce clear laws which deter users from engaging in activity of this nature.
Last Friday's news reports told us about the conviction of a pimp who would not have been caught if it were not for sheer luck and the commitment of a designated vice squad. The man in question was caught when he walked into an apartment that was being used as a brothel while the vice squad was carrying out surveillance on the apartment. What has the Government done to equip gardaí with legislation as they try to police the sex industry? The 2008 scene is very different from that of 2003. What type of resources have been made available to Operation Quest? Is the vice squad operating throughout the country, rather than just in Dublin? Has there been a huge increase in the resources available to it?
As the sex industry expands in all parts of this country, it is interesting that Garda resources for the Dublin vice squad have been cut considerably, if I am not mistaken. What conclusions have been reached by the Government on issues like the advertising of prostitution on the Internet and the use of mobile telephones? What is its view on the running of lap dancing clubs and massage parlours and the provision of call-out sexual services, some of which directly exploit persons in prostitution and others of which provide a mask or a semi-legal environment in which prostitution can take place?
If we seriously want to address prostitution and protect vulnerable children, women and men, as the Swedish authorities have been courageous enough to do, we need legislation which criminalises users. Substantial resources need to be made available to those, such as the Garda sources I have quoted, who want to tackle the sex industry, particularly those who recognise that it involves tackling the users as well as the providers. As in the case of the alcohol industry, one does not just tackle the supply — one also tries to tackle the demand. While we are not seeking to criminalise those who use alcohol, we are trying to educate them in order that they choose to change their habits. Perhaps it would cost too much for the State to keep people out of prostitution. If there is an unwillingness to engage in the serious transformative social change that is needed if we are to deal with this issue properly, it is a major tragedy.
It does not take much to determine the human cost of prostitution. Roger Matthews, who is professor of criminology at South Bank University in London, was interviewed inThe Guardian recently about his new book, Prostitution, Politics and Policy. He is entirely against liberal solutions to prostitution. I admit that the Government is not proposing liberalisation in this legislation. He completely disagrees with the notion of legalisation, as he believes punters should be deterred. According to Professor Matthews, “murders such as those in Ipswich are actually the tip of a very large iceberg”. He believes that many women are in extreme danger. As he puts it, “I have never met a happy hooker”. The remarks of Professor Matthews should concentrate the minds of those — not necessarily in this House — who claim that engagement in prostitution is somehow an expression of free choice. The article in The Guardian states, “the most important lesson learned in Sweden, says Matthews, was the need to treat the women in prostitution completely differently from the men who buy them”. Are we doing that in this legislation?
I remind all concerned that we are not talking about something that is hugely removed from the issue of trafficking. If one tackles the users of persons in prostitution, one will reduce the market and thereby remove the lifeblood of those who are involved in the trafficking industry. This amendment, for the purposes of which I have adopted the Government's preferred language, proposes to criminalise anyone who "solicits or importunes another person, in any place". I emphasise, in order that there is no possible misunderstanding, that this amendment would not criminalise just the person who solicits a person in prostitution in the street. It seeks to target the person in the brothel who accepts the proposal that is made to him or her to avail of the services of a person in prostitution.
Does the fact that I have seconded amendment No. 8 preclude me from discussing amendment No. 14?
No. It has been agreed to discuss amendments Nos. 8 and 14 together.
Okay. I understand that this is a tricky and difficult issue for the Minister of State to deal with. I recognise that a great deal of side discussion, etc., is taking place in this regard. We need to examine a number of matters. While amendment No. 14, in my name, proposes to amend the Criminal Law (Sexual Offences) Act 1993, its intent is very much in line with that of amendment No. 8. The only difference is that my amendment is more concise. It is important that I establish from the outset that its relevance is rooted in the fact that a significant proportion of young women who are trafficked are trafficked for the purposes of prostitution. That is how the issues of trafficking and prostitution become connected. The Minister of State has linked them in his comments on various sections of the legislation.
Prostitution is a triangle in the sense that three groups of people — pimps, prostitutes and punters — are generally involved in it. While prostitution is a criminal offence, just two of the three sets of people involved are criminalised. The amazing thing about last week's case, to which Senator Mullen referred, is that while it is an offence to run, keep or organise a brothel or live off the immoral earnings of a brothel, it is not an offence to use a brothel. Even though the money paid by those who use brothels keeps them in business — prostitution is entirely focused on punters — we do not take any action against such people. The issue that arises in this context is whether the State should be involved in moral issues. I am raising this as more of an ethical, civil rights and human rights issue than a moral issue. That is where I come from on it. There is an offence in the prostitution area called "living off immoral earnings". The question of whether we are straying into a moral area does not arise because we have been doing so since 1860, including in 1993. The moral question is not a new one. Many of us might ask whether we should get into that, but that does not affect this argument in any way.
The people who use the brothel, who keep the whole process going, on whom it is focused and whose money supports it are the only ones who can walk away scot-free. There is something wrong with that. If prostitution is a criminal offence, why is the person who gets the benefit of it in terms of personal pleasure let off the hook?
I have taken a different approach from that of Senator Mullen for the following reason. The Minister of State will recall that I examined closely the 1993 Act. When I table an amendment, I always try to make it as incremental as possible. I prefer an incremental change rather than a revolutionary one because change must be managed and a gradual approach is required. The Minister of State should consider the impact of what I propose.
Last week the Minister of State said that prostitution was a crime under the 1993 Act. At one stage, I disagreed with him but part of my argument was wrong. The person engaging in prostitution — the client — can be found guilty of a criminal offence under the 1993 Act. There is, however, a conundrum, although we are agreed up to this point. If a guy avails of the services of a prostitute in a street or public place, they are both guilty if charged, as is the pimp who organised it. If we move them off the street, it is no longer a crime for one of those three people. That bamboozles me. The only way one can interpret that is to say we do not want people doing that type of thing in the street but it is okay if they do it somewhere else. The fact it is happening in a street or public place makes it a public order issue.
How can the State, which considers it a crime for a person to live off the immoral earnings of prostitution, at certain times consider prostitution as a public order issue? If that is the case, it is appalling. I do not know what moral or ethical standard we would apply if we came to that conclusion. I do not want to put words in the Minister of State's mouth because I do not know if that is the case. I am working my way through this.
I have read all the Acts dating back to 1860, including the 1930 Act which, I believe, referred to street order or street loitering. It is a process, there is a continuum and it is a clearly understood position. It would appear there was a view that no action would be taken against the person using the prostitute. Surely that cannot be right. If the Minister of State says he understands what I have said but the Government is not prepared to take a position on it, I would understand that. It would be logical, although I would not agree with it. I cannot find any logic in the arguments against what I propose.
The point was made from the Government benches last week that we should consider what happened in Ipswich and what people have learned about the prostitutes there. This is no "Pretty Woman" or happy hooker scene. These people are coping with addiction, desperation, phobias, mental illness and poverty. As was said last week, those are the issues and I completely agree with that.
I do not put this forward from a prudish or necessarily moral point of view. Although I believe it is a moral issue, I am not coming from that point of view at this stage. Human rights, civil rights, ethical issues and a sense of equity are driving me at this point. In this triangle of prostitution, the prostitute, the pimp and the punter are, at the very least, all equally guilty or they are all aiding and abetting if they are not acting. It is impossible to separate one from the other two.
I refer to the phrase "sex worker". It is almost as if one would sign up to being a sex worker when filling in the CAO form. I am not suggesting for one second that the Minister of State has said anything like that. However, there is an attempt outside the House to suggest that people decide whether to become a teacher, politician, factory worker or sex worker. The words "sex worker" are as unacceptable as is the word "nigger" in another situation. The words are unacceptable and should not be used by people. I do not say that to in any way admonish the Minister of State. The words come into the discussion as we find things at present and that is no reflection on him. The forces behind this huge industry use those words.
The other issue with which I wish to deal is the question of driving prostitution underground. I have tried to look logically, fairly and disinterestedly at this. Two out of three people will be criminalised but people have said that if the third person is criminalised, it will drive it underground. Are the other two people not interested in being underground and protected? We have criminalised two of three which does not seem to have driven it underground, although perhaps it has. Whether it has or has not, will somebody outline why including the third person would drive it underground? If we say it will drive it underground, what are we saying by not taking action? How does that reflect on us? What is our perspective and read on this? There are huge questions here.
I accept this is a very big issue. Society and democracy have feared addressing this issue which has been on our Statute Book since the 1860s, and perhaps it is a bit unfair to dump it on the lap of Minister of State. However, three quarters of an hour ago, a Minister took a decision here to decriminalise libel in all sorts of ways. It was the first time it was done in Europe. It is a huge issue about which we have talked for generations. This is an issue on which we could take a similar step which would be a model and a standard-bearer to be copied. It would give confidence in other ways.
Will the Minister of State consider my amendment on the basis that it looks in a fair and equitable way at apportioning blame and criminality to the protagonists in prostitution?
Those protagonists are the three "P"s, the pimp, the prostitute and the punter. Blame and criminality should be shared equally. Neither I nor anybody else here brought the word "moral" into the debate. Previous generations of legislators deemed it a crime to live off "immoral earnings". It is not for us to decide that this is a new step towards introducing morality into people's lives or interfering in morality in other ways. That has been done already.
The impact of my proposal is slight. I am not proposing a new crime. The 1993 legislation made it a crime to use the services of a prostitute, but restricted the crime to a street or a public place. If it is a crime, it is irrelevant where it takes place. It should be seen to be a crime and those who are guilty on a street should be equally guilty of taking advantage of, or exploiting, vulnerable people, prostitutes, wherever they choose to do so.
The argument in favour of taking appropriate action is overwhelming. I urge the Minister of State to respond in that way. This is not a party political issue. Members on the other side share my views and I am sure the views of the Minister of State would not differ greatly from mine. If the Minister of State cannot act on this tonight, will he indicate where, when and how he might act on it?
The most important thing to remember in this debate is that this legislation deals with human trafficking. We have arrived at a high degree of agreement in these Houses, and in the country, on what the crime consists of, and what measures are required to combat it. The Minister of State has responded to concerns raised on this side of the House about the users of the services of trafficked persons and has proposed an amendment to deal with the issue.
While I do not criticise my colleagues for raising issues related to trafficking in the debate, I strongly counsel against our doing anything that would detract from the principal objective of this legislation, namely, to criminalise and enforce criminal sanctions against traffickers and trafficking to prevent this scourge. I counsel against taking the debate, at this relatively late hour, so far beyond the question of trafficking as to require a longer, fuller debate. Senator O'Toole said this is a huge issue, which it is. If it is to be debated here, as it has been in other countries, it ought not to be grafted onto another Bill. I do not deny that the issues are connected but it would be controversial to introduce the kind of measures Senators Mullen and O'Toole propose. There ought to be a wide public debate on this question rather than introduce it at this stage in this legislation. That could have the unintended effect of detracting from the principal objective of this legislation to deal with the scourge and scandal of trafficking.
It is a complex question. The evidence of the Swedish experience, to which other Senators and the Minister of State have referred, does not point to a settled conclusion. There are different views about its effect and about what the Swedish Government thinks of its effect. It is not as settled as the question of the need to combat trafficking. We have asked the Minister of State to change the legislation, which he has done in some cases. It all, however, falls under the rubric of introducing measures to deal with trafficking.
I do not wish to do precisely what I have suggested we ought not do but I wish to point out some of the issues that would require to be addressed were there to be a wider debate. Senator Mullen says it is all very well to talk of arguments about the oldest profession and so on and Senator O'Toole rails against the term "sex worker". While I understand his view, we would also need to respect the views of others, including people who are content to describe themselves as sex workers. Their voices must be heard. We would not be required to agree with them but they are part of the debate and we ought not be so dismissive as to say that people who so describe themselves are deluded in some way because the term offends people, which I can understand. We need to hear all the voices and as much of the evidence as we can gather if we are to have such a wide debate.
I agree with Senator Mullen's criticism of people being selective in their arguments, but perhaps we are all tempted to be selective in respect of the arguments that we like. It is fine for Senator Mullen to say that should not be done but he is in danger of doing it himself when he is so dismissive of some of the arguments made about prostitution. I do not object to our having that debate, but let us have it in its own right and not tag it onto this vitally important Bill on which the Minister of State, his officials and the Members of these Houses have done significant work. Let us get this tightly focused Bill into action and have a wider debate on prostitution. As legislators we must think not twice but ten times about introducing criminal offences which carry sanctions such as fines or periods of imprisonment. These are big calls for legislators. Senator Mullen is correct to say the law has an educational dimension.
To introduce sanctions on people being imprisoned is momentous and involves serious decisions. The law in the area of criminal legislation cannot just be seen as an educator. I am not suggesting Senator Mullen said this, but we cannot simply see the law as some form of declaratory entity, which shows how seriously we take matters and so forth. That is only part of the importance of law, but we must also have regard to the fact that it has real effects. Let us have such a debate, but not in the context of this item of legislation. That is my view.
I cannot support the amendments. However, as I said on Committee Stage, the debate as regards prosecuting people for purchasing sexual services from prostitutes requires a wider debate and should have its own legislation. It is not just that aspect of this particular realm that should be included in that legislation. We need also to look at brothel keeping and the advertising of prostitution services, the use of the web and the need for a dedicated vice squad, not just in the capital, but outside the greater Dublin area. Funding for this must also be considered.
I support the tenet of what Senators Mullen and O'Toole propose. This is excellent legislation and it is needed. However, I believe we are creating a grey area which appears to suggest it is all right, in one sense, to purchase sexual services from a prostitute of the home-grown variety, but not someone who has been trafficked. We are creating a grey area, even though the law is already grey. During the debate on Committee Stage I heard details of Acts dating back to 1860, which left me somewhat confused. We require an amendment of the Criminal Law (Sexual Offences) Act 1993. I note a sexual offences Bill will hopefully be introduced and in the event, that is the area where this debate needs to be held.
It is interesting in the context of the Criminal Law (Human Trafficking) Bill, as it is proposed and will hopefully be enacted, that this issue is the one that has bogged us down most — and attracted the most debate. It is something the media need to highlight. I am glad we have had some reaction from the debate in the Seanad on the last occasion. It is something that needs to be discussed more widely. Any lay person to whom I have mentioned it over the last week has been shocked by the imbalance of the law in this area. Many of the men I have mentioned it to just nodded, smiled and put their heads down.
We need to get rid of the embarrassment factor in our country as to how we treat women. A wider debate on how women are treated and what we have on the Statute Book to protect them is enormously important. In that context we also need to have a debate on the purchasing of sexual services. Somebody told me during the week the only people who want to see criminalisation with regard to the purchase of sexual services are nuns and feminists. I am neither. I am not overly religious. Although sometimes I believe life is turning me into a feminist, I did not start out as one — or intend to be one.
That is not what is intended here. We are concerned with dignity and human rights and treating people with respect. Another person asked me during the week whether I should like my sister, mother or someone I knew to be involved in this — and what were the root causes. This is the type of debate we should have. Knowing how committed the Minister of State, Deputy Brendan Smith, is to the law and trying to get it right, I urge him to see we get some clarity on this issue. It needs to be brought forward. It is not for this occasion, and I completely agree with everything Senator Alex White has said in that regard. We need to get this Bill onto the Statute Book as soon as possible. However, as a young woman living in Ireland, today, I would rather live in Sweden than in Amsterdam.
It is true that amendments proposed by Senators Mullen and O'Toole hijack this Bill to a certain extent. In fairness, the trafficking Bill is dealing with exploitation of different varieties, including sexual exploitation. The Minister has accepted an amendment in the Bill to the effect that those who avail of sexual services from a person who has been trafficked are guilty of an offence. The amendments are legitimate, even though there is, perhaps, the requirement of a wider debate. However, if prostitution is illegal, which it is, then there is a case to be made that the ambit of that offence should extend to all those who participate, including the user. The case has been made persuasively by both Senator Mullen and Senator O'Toole. It is before us, the amendments are validly made and we must decide on the matter based on the discussions we have had this evening and previously.
There is an anomaly in the criminal law of prostitution and in fairness to both Senators, they are attempting to address this.
I am pleased the amendments were tabled on the basis that they give some airing to an issue that deserves to be debated. I left my office to attend this debate on that basis.
I am confused as to whether this is the right forum. Men in here might be shocked to hear me putting a viewpoint from the other perspective, but should I have the wish to avail of the oldest profession in the world, do I have to ask someone, in effect: "Are you trafficked from eastern European?".
One has to ask for the local woman in the brothel.
Senator Keaveney, without interruption.
I do not mind getting help to clarify this. At the moment, if I try to secure sexual services I have to be sure that the person is eastern European, and then I know I am committing a crime. However, if I approach someone who has not been trafficked, but is eastern European, then I am safe but a crime may be committed. I thought that under the Constitution there had to be an element of everybody being treated the same. I worry that we might be creating an anomaly. What happens to these trafficked in a couple of years when they might want to become Irish citizens? I wanted to come into the Chamber to say this, because it is relevant to prostitution and to this debate and needs to be aired. It is good that there are at least two females who are prepared to air it, because it is not popular to raise the issue.
I was at a conference in Sweden on drugs a number of years ago, opened by the Queen of Sweden. I went there to listen and learn and I was tackled the moment I sat down with regard to what Ireland was doing about its problem. Members will be happy to know the prostitution issue was not central to that aspect. The key issue at the time was what we were doing about our big drug problem, namely, the alcohol issue. Those at the conference linked alcohol, drugs, prostitution, sex rings and all that together. The whole issue of supply and demand was discussed. I should hate to think we might be creating a difference between one person and another in our legislation. I do not know how this might be overcome. I agree with anyone who is calling for a debate on the issue of domestic sexual violence, sexual bullying and bullying in the workplace. These are issues which might not be directly involved in this debate. However, I am told quite often that not every prostitute is forced into prostitution. They may not be forced into it but, in light of statistics on abused individuals proceeding to abuse, I wonder whether there is a link between those who have been abused and those who enter prostitution. Overtly they are not forced into anything but much of the pressure is covert and below the radar. This is worthy of discussion.
I accept that considerable work has been done in this area and that the legislation is about traffickingper se, but an anomaly is being created whereby one set of rules is being created for one group and a different set for another. I would like to believe this can be addressed at this late stage. If not, I hope this Bill will be followed rapidly with other legislation dealing with the issue. I look forward to a debate on it.
I thank all the Senators who have contributed on amendments Nos. 8 and 14. The purpose of amendment No. 8 is to criminalise soliciting or importuning any person in any place for the purpose of prostitution. In other words, it extends the present soliciting laws to include soliciting in private.
I assume it is intended to repeal section 7 of the 1993 Act as it would overlap with this amendment and cause nothing but confusion. In that case, the amendment would decriminalise soliciting by a prostitute. The purpose and effect of this amendment are the same as those of an amendment defeated following prolonged debate on Committee Stage. It seemed to me during that debate that there was confusion as to the present laws governing prostitution and allied issues.
I will now outline the present laws. Some are very old, as most Senators have stated, but most are modern and originated in the 1990s. On the Criminal Law (Amendment) Act 1885 and the offences of procurement, there was some confusion over the meaning of "procure". Procurement has been interpreted in case law as bringing about a course of conduct that the girl in question would not have embarked on spontaneously or of her own volition. It was held that the offer of a large sum of money for undertaking tasks could amount to persuasion and, consequently, an attempt to procure.
The offences of procuring are: to procure or attempt to procure any woman or girl not being a prostitute or of known immoral character to have sexual intercourse with any other person; to procure or attempt to procure any woman or girl to become a prostitute or to leave Ireland with the intent that she should become an inmate of or frequent a brothel; and to procure or attempt to procure any woman or girl to leave her usual place of abode with the intent that she may, for the purpose of prostitution, become an inmate of or frequent a brothel. These offences are clearly out of date and are being examined at present in the context of the preparation of a sexual offences Bill, as a referred to Senator Lisa McDonald.
The main prostitution offences are listed in the Criminal Law (Sexual Offences) Act 1993 and were referred to by Senator Joe O'Toole. Section 7 created an offence of a person soliciting or importuning another person in a street or public place for the purpose of prostitution. The scope of this provision was questioned on Committee Stage. First, the soliciting must be in a street or public place. "Public place" is defined as "any place to which the public have access whether as of right or by permission and whether subject to or free of charge". The soliciting can be by the prostitute, the customer or the third party. This is set out in section 1(2), in which it is stated:
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 [in other words, the prostitute],
(b) solicits or importunes another person for the purpose of obtaining that other person’s services as a prostitute [in other words, the client], or
(c) solicits or importunes another person on behalf of a person for the purposes of prostitution [in other words, a third party such as a pimp].
This has been outlined very well by Senator Joe O'Toole.
Under section 8 of the 1993 Act, it is an offence to loiter in a street or public place in order to solicit or importune another person for the purpose of prostitution. Again, this offence can be committed by the prostitute, customer or third party and is useful in curbing kerb crawling.
Section 9 of the Act made it an offence, for the first time, to organise, direct or control prostitution or to coerce or compel a person to be a prostitute. Under section 10, it is an offence to live on the earnings of prostitution. Section 11 recreated the offence of brothel keeping, an offence in respect of which the Garda has had some recent success in gaining convictions.
Section 23 of the Criminal Justice (Public Order) Act made it an offence to advertise a brothel or the services of a prostitute in circumstances that would give rise to a reasonable inference that a premises is a brothel or that the service is one of prostitution.
The Criminal Law (Sexual Offences) Act 1993, in so far as prostitution is concerned, had two purposes, the first of which was to protect areas of our cities from the harassment, noise and anti-social activities generally that accompany public prostitution. Those of us who were Members of the Oireachtas in 1992 and 1993 will remember the public call, through the broadcast and print media, to curb desperate harassment caused by prostitution. The call was made by community leaders, families and the public at large and the topic was covered constantly.
The Act protected prostitutes from the clutches of persons who controlled their activities or coerced or compelled them into prostitution. The provisions of the Act came about after much consideration following an earlier court case that had effectively struck down the soliciting provisions and created a balance that seems to be working reasonably well.
Virtually all street prostitutes are poor, vulnerable drug addicts who prostitute themselves to obtain money to feed their habits. No matter what changes are made to criminal law, these unfortunate prostitutes will still be poor, vulnerable and addicted to drugs. What they require is not a change to the law, which might increase their vulnerability, but the provision of services to enable them to come off drugs, obtain frequent health checks and have a normal, healthy life.
The problem is a social one and not associated with criminal law. This Bill is not the appropriate one in which the implement the changes to our laws on prostitution. The amendment in question has not been thought through in terms of its effects and implications. I have given examples during the preceding Stages that show that this type of proposal could work to the disadvantage of the prostitute, placing her in even greater danger.
Senator Mullen referred to a radio programme yesterday morning on one of the national stations. I did not have the opportunity to hear it but understand the person referred to as the sex worker — Senator Joe O'Toole quite rightly referred to the unfortunate use of the undesirable term "sex worker" — said there may be a reduction of on-street prostitution but that those remaining on the streets would face increasing dangers. It is important that we recall the lady's comment.
Changes to criminal law should take place only after detailed research and after consideration is given to their effects. Changes will be made only after we are satisfied they would improve the conditions of prostitutes and reduce the level of prostitution. This has been the theme of every contribution in the House this evening and during the previous debates.
I referred on Committee Stage to an article by a social anthropologist, Petra Östergren, on the effects of the changes to the prostitution laws in Sweden. I simply referred to the article as outlining the point of view of prostitutes in Sweden, whom the laws are designed to protect. It makes sobering reading and, if nothing else, would make any responsible person who had any regard for the plight of prostitutes to at least do more research on this entire area. It is a major social issue that requires detailed research and consideration, after which effective legislation should be implemented.
Senator O'Toole, in his best múinteoir style, involving the when, the where and the how, asked us what we were doing about this matter. I referred to the preparation of legislation on sexual offences. Since the Committee Stage debate in this House Senator Lisa McDonald has contacted me inquiring about the exact position on the preparation of laws on sexual offences. Prostitution offences, in particular child prostitution and the sexual exploitation of children, where our main concerns lie, are being examined in the context of that legislation. If we are satisfied following a thorough examination of the laws governing adult prostitution that changes to those laws are justified, appropriate provisions will be included in the Bill. I outlined previously in this House that this is an issue that needs detailed consideration. I am sure that this House and the Dáil will have the opportunity to revisit this important issue in addressing these issues with the appropriate legislation.
Senators Alex White and Regan stated that the legislation before us is the Criminal Law (Human Trafficking) Bill 2007, which is an important point. The debate in both Houses has been important. There has been extremely detailed work put into the preparation of this legislation. The Bill was extracted from the Criminal Law (Trafficking in Persons and Sexual Offences) Bill so that we could bring forward that legislation to give those necessary protections to those unfortunate people. We have fast-forwarded extracts from that greater Bill to ensure, as Senator Alex White stated, that we could deal with these particular issues. He correctly stated that the focus has been placed in that Bill in dealing with the issues before us.
I repeat that we are not putting in place legislation that will not be followed up by the appropriate services and regulations. Unusually, we already have in place the services, and a particular office, to drive these programmes to assist these people before the Oireachtas passes the legislation.
Senators O'Toole and Regan made the same point, that it is important we do not lose the focus on the human trafficking issues in this Bill. Senator O'Toole correctly asked if we can expect a criminal law (sexual offences) Bill. The reality is we have a considerable amount of work done in this area. I have had sight of the second draft of such a Bill. It is not a completed product and we have a great deal more work to do on it. Work is in hand in the Department of Justice, Equality and Law Reform on all of these issues.
Senator Mullen asked what conclusions we had reached. We have not reached conclusions because we are realistic enough to know that we will do our research and consultation before we reach conclusions to ensure we get the legislation right. Senator Mullen, at the end of his lengthy contribution, made one apt comment. He stated that the issue of prostitution he was addressing in his amendments, along with Senator O'Toole, was not significantly removed from the trafficking issue. That clearly shows that we need to deal with the issues in the Bill before us and the other valid issues that need to be addressed shall be addressed in the appropriate legislation.
First, I compliment Senator O'Toole on amendment No. 14.
There are a number of issues to which I want to respond briefly. I note a certain disquiet. Generally, I am disappointed by the Minister of State's contribution. I know he as an individual means well but he must carry the can for the Government here. I am not as convinced as he is that the Government is engaging in fresh and properly researched and informed thinking here, and particularly on the authentic search to try to vindicate the welfare of persons in prostitution. I say that with no apologies. I know the Minister of State is personally sincere but I am not happy that the Government has looked at this properly, I have said why and I do not resile from that.
Part of the problem here is that there is almost a squeamishness about speaking about this issue because it is seen as somehow an unacceptable kind of moral issue. There has been a long tradition of debate about the extent to which the law should seek to enforce morality. Students of law will remember the great Hart and Devlin debates. We should not be ashamed about speaking of some issues as being moral ones. It is immoral to commit murder. It is true to say that there are some moral issues that we do not seek to enforce using the law, for example, rightly, we do not try to criminalise adultery. However, let is not be afraid of speaking of some issues as having a moral content because whenever one speaks of looking out for other people, one is in the area of morality or ethics — the terms are interchangeable in my view.
I noted with interest what Senator Alex White had to say. I felt that there was a note, albeit a respectful one, of censure in his voice. It would be important to state that people should not misconstrue our passion on this issue for some kind of a lack of respect for different points of view.
Exactly, that is what I was worried about.
It is important not to misconstrue, as I believe might be happening. It was Senator O'Toole who deplored the use of the term "sex worker". He is correct. It does not mean to say that there are not people who describe themselves as sex workers who may be perfectly sincere. It does not mean to say that we deny or would seek to deny the right of people, such as the person who appeared on the radio yesterday speaking for some women in prostitution, to express a viewpoint. However, it does mean to say that we are entitled to believe that they may be badly misled in their view.
I should not have to remind people that this is an issue, as Senator O'Toole stated, of civil rights, human rights and human dignity. It is important to speak with passion and to challenge thestatus quo way of thinking when one is speaking of protecting or seeking to protect other people. There have been cases through history where people blithely threw up arguments that there were two sides to a matter. In the end people’s rights get ignored, not necessarily trampled on in every situation. Sometimes the people are quite well-meaning but, nonetheless, people’s rights get ignored.
I look forward to a day when we see more clearly that one way, among many other necessary measures, we can have due regard for the equal dignity of men and women in our society is to criminalise those who would exploit other persons' bodies. It is simply unacceptable that there are certain people in our society, especially men, who in terms of their attitudes towards women see these kinds of services as ones that women can be legitimately expected to provide, provided of course that there is consent. That is why there is a problem with using terms such as "sex worker". I do not say that the Minister of State used it, although one of his colleagues in Government used it in a different context a few years ago when he referred to a commercial worker. That normalises the exploitation, primarily of woman. Let us be in no doubt about that.
I also note that Senator Alex White made many references to the fact that there is not agreement. Of course there is not agreement. There are few issues on which there is unanimity. Senator White referred to certain doubts in the Swedish establishment about their law. I would be interested to hear about those. The only doubts I heard from the Government came from those who are advocates for the commercial sex worker point of view, which is a point of view which people have a right to hold. I have described it as a pro-choice point of view which seeks to defend the business. However, I have shown it is difficult to speak of choice in a situation where there are no happy hookers, as I cited fromThe Guardian, and where people often find themselves, as Senator McDonald so eloquently suggested, in this business through circumstances of life which militate against any kind of free choice being exercised.
There is rarely unanimity on issues. There is an active lobby, which has found a listening ear in the Government, which seeks to oppose legislation according to the Swedish model. They have thrown up enough doubts, either to convince this Government intellectually or to enable this Government to choose the path it was going to choose anyway.
I am disappointed that I do not appear to have managed to convince people. I was surprised at the Minister of State, referring to me, state that the matter was not hugely unconnected. Let me be clear that what I am trying to get across is the point that it is difficult to separate the issue of the need to criminalise the users of persons in prostitution from the issue of trafficking.
The United States Trafficking in Persons, TIP, report is published annually and the Department will be familiar with it. This year at a meeting in the US embassy in Dublin attended by NGOs and representatives of the new anti-trafficking unit in the Department of Justice, Equality and Law Reform, it was interesting that our colleagues in the United States wanted to know what efforts countries were making to decrease the demand for trafficked persons. I hope I have made it clear that by creating a disincentive for the user, we would make the country a colder house for traffickers, because fewer persons would be willing to avail of the services traffickers are only too willing to provide.
This is an issue that will not go away. It is, in a way, a tragedy that we have to think twice about these amendments. The message should be as obvious as issues to do with the radical essential dignity between men and women and different races. I hope that day will come.
Senator O'Toole was particularly eloquent in exposing some of the bogus argument on this issue. Senator White referred to the law as an educator. He appeared to agree and disagree with me by turn. Take, for example, an issue such as infanticide. Clearly, the law does not seek to punish the person who commits infanticide, but nonetheless, it is a very much a part of trying to normalise a certain attitude towards a very tragic human situation that a criminal law exists. The comparison may not be great, but it should illustrate the fact that sometimes the law seeks to send out a message, but very much soft-pedals the issue of punishment.
In this situation the law seeks to send out a message towards the potential users. It does not so much seek to soft-pedal the issue of punishment, but seems to recognise that it might, in some cases, be difficult to get a prosecution. The hope would be that the mere fact that trafficking is criminal, would prevent certain people from seeking to avail of the services. I remind the Minister of State and Senator White that the Swedish experience has been that they have fewer trafficked persons into their country. We heard the argument on Committee Stage that one of the down sides of criminalising trafficking was that we would have dispersal. This as much as admits that the traffickers will go elsewhere because they will not find solace to the same extent.
I accept this amendment will not be accepted. However, I put the Minister of State and others on notice that the issue will not go away. The Minister of State is not the only person who has researched the issue. I believe the Government has not done enough research on it and has been selective in the choice of issues on which to lay stress. I remind it again that it does a disservice if it even implies that organisations such as Ruhama — I do not say the Minister of State did imply, but he came close to it——
I did no such thing. The Senator should not try to misrepresent me or the Government. I am here as the Government representative and am not speaking in a personal capacity at any time. I speak on behalf of the Government. Less representation would be helpful.
I am not misrepresenting anyone.
The Senator appears to be trying to do so.
I invite the Minister of State to withdraw that.
The Senator did so the last time and tonight.
It is quite clear from the way ——
It is quite clear the Senator has tried to misrepresent me and I will not accept that.
I will go further and will not imply. It is quite clear from the way the Minister of State spoke that he was suggesting that this side of the argument had not researched its position. He is wrong in that.
I did not say any such thing. I am humble enough to——
Senator Mullen, without interruption.
Sometimes people have to read between the lines. This is not personal, but I want to put on record ——
Hold on. The Senator will have to stop misrepresenting me or the Government on a continual basis.
Senator Mullen, without interruption. I ask Senator Mullen not to invite comment from the Minister of State.
We shall agree, honourably, to disagree. I want to put on record that the people in Ruhama, with whom I have a lot of contact, have paid close attention to this issue. They are much better informed than I am and, I dare say, than the Minister of State, about the complexities of this issue, as they have been tracking it for many years.
Some 15 years have passed since we last had legislation in this area. The climate has changed enormously, but we have not seen any significant evidence of Government attentiveness to the shifting situation with regard to the sex industry. There is no denying that. However, the people in Ruhama who accompany women in prostitution and would do nothing to put them in danger are clear that they seek legislation that would criminalise the users. They are to be applauded for that. Admittedly there are people with other points of view. They are entitled to their point of view and their points of view must be heard, but this does not mean that they should carry the day, particularly when put against the views of dedicated, diligent and careful people involved in the accompaniment of persons in prostitution who would do nothing to put them at risk.
These people are supported in their view by members of the Garda Síochána who have worked in tackling the sex industry. Some of these take the view that not only would persons in prostitution not be endangered by criminalising the users, but that this would be a very desirable measure in bringing down the number of persons involved in prostitution by discouraging potential users and thereby making the country a colder house for traffickers. That would be a good thing and I look forward to the day we bring that situation about in the law.
I move amendment No. 9:
In page 8, between lines 8 and 9, to insert the following:
6.—(1) A person (other than the person or persons who trafficked the person) who sexually exploits a trafficked person shall be guilty of an offence and shall be liable upon conviction on indictment -
(i) to imprisonment for life or a lesser term, or
(ii) at the discretion of the court, to a fine.
(2) 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 trafficked.".
This amendment deals with the offence of sexually exploiting a trafficked person and includes prostitution, pornography, etc. Members will be relieved to hear that I have already said much of what I have to say in the context of the previous amendment. There is a definition of sexual exploitation available in the Bill. I do not want to misquote the Minister, but if I recall correctly, on Committee Stage he basically said that trafficking for the purpose of sexual exploitation would be covered. However, I do not believe all situations are covered, for example, where A trafficks a person into the country for exploitation, whether in the labour market or in the sex industry and down the line, B, who was not involved in the trafficking, is making pornographic movies and seeks to engage the services of a trafficked person. That is the type of activity this amendment seeks to criminalise.
It will be of comfort to the Minister of State that there can be no doubt of the connection between this and the issue of trafficking, because we are talking about a person who is a trafficked person and who gets used down the line by somebody who may not have been involved in the trafficking but who uses them in the sex industry in some way. The amendment also provides that there would be a defence where the defendant could prove that he or she did not know and had no reasonable grounds for believing that the person was trafficked.
I second the amendment.
Senator Mullen raised this issue on Committee Stage. I undertook to consider the amendment before Report Stage to see if there was a gap in the law that needed to be plugged. Following an examination of the issues involved, I am satisfied and advised that the Bill is strong enough to cater for the situation envisaged in the amendment, which has been resubmitted in a slightly different format.
Human trafficking is an offence against the person. It is different from people smuggling, which is an offence against the State. Persons who are smuggled into a country, usually economic migrants who have paid a substantial amount of money to the smugglers, are free when they arrive at their destination. The smugglers have no further interest in them. This is in total contrast to trafficking, where the trafficked persons on arrival at their destination are enslaved by the trafficker or by another person to whom the unfortunate trafficked person has been sold. This is the reason human trafficking has been described as a modern form of slavery. The trafficked person has no independence and he or she will remain under the control of the exploiter, whether the exploiter is at that stage still the trafficker or another person.
The definition of "trafficks" in the Bill incorporates all the persons in the trafficking network, from the trafficker him or herself to any person who subsequently takes control of the trafficked person. As long as the trafficked person is of value to the exploiter, he or she will be in the care or charge of the exploiter and will be under his or her control. The trafficked person would be also in accommodation provided by the exploiter.Therefore, under the provisions of the Bill, a person who is comprehended by the definition of "trafficks" who sexually exploits a trafficked person for any of the purposes listed in the definition of "sexual exploitation" would be guilty of one or more of those offences. Almost certainly, the trafficked person would not consent to the sexual abuse set out in the definition of "sexual exploitation". Even where she did consent or appear to consent, under section 5(2), that would not be a defence for the defendant in any case brought before the courts.
The effect of the amendment would be to criminalise a range of activities with a person who may have been trafficked but is now a free agent. At this stage, if it was ever reached, the person who had been trafficked but was now totally free to do as he or she wished would be in position that was no different to that of any other person who had not been trafficked. The conduct that makes up the definition of sexual exploitation of a trafficked person is a mixture of conduct which would, in any case, be an offence and conduct which may not, depending on circumstances, be an offence. An example of the former is paragraph (d) of the definition, that is, the commission of an offence specified in the Schedule to the Act of 2001. An example of the latter is paragraph (a), which is the production of pornography.
I hope I have adequately explained why this amendment is unnecessary and would offer no additional protections to trafficked persons, as would be its intention. It would also be bad law in that one person could be criminalised and face up to life imprisonment for doing something which, if done by another person, might not even be an offence. If Senator Mullen wishes to initiate a debate on any aspects of what is included in the definition of sexual exploitation, such as our attitude to pornography, that is his right. Such a debate might not be a bad thing. Any changes to the law on such issues could only follow a public debate and would have to take into consideration such modern technologies as the Internet, mobile phones and satellite television.
Amendment No. 10 in the names of Senators Kelly, Hannigan, Prendergast, Ryan, McCarthy and Alex White arises out of Committee Stage. Amendments Nos. 10, 11 and 13 are related and may be discussed by agreement.
I move amendmentNo. 10:
In page 10, between lines 25 and 26, to insert the following:
"12.—A victim of an offence under this Act shall not be prosecuted for entry into or presence in the State or for carrying out the labour or sexual acts, insofar as such entry, presence or carrying out labour or sexual acts were a consequence of the trafficking of that person.".
As the Acting Chairman rightly indicated, these are three linked amendments. By leave of the House, I will read out the amendment because it is important that we are absolutely clear about what is being proposed. Amendment No. 10 proposes that a victim of an offence under this Act shall not be prosecuted for entry into or presence in the State or for carrying out the labour or sexual acts, insofar as such entry, presence or carrying out labour or sexual acts were a consequence of the trafficking of that person. It is important to clarify that it is not a proposal to accord an amnesty to persons in all circumstances. There is no suggestion that a free for all is being advocated or that carte blanche is being extended.
What we are talking about is a measure which would put in place a regime whereby the victim could not be the subject of a prosecution in circumstances where he or she had been trafficked for the purposes of that particular activity. I am not sure what the Minister of State's response will be. I cannot remember precisely what the Minister said on the last occasion in respect of this. Again, it comes back to the question of a holistic approach, if I may dare to use that phrase again. We talk about the measure to prohibit trafficking and introduce stringent sanctions for it. We must have regard to the fact that the victim of trafficking must be protected. Is there any more important provision that would protect the person in those circumstances than a provision which says that we will not prosecute them for carrying out any of these acts in circumstances where they were trafficked to this country for that purpose? I am interested in hearing the Minister of State's reply.
I second the amendment. I agree with what Senator White said in his explanation of the amendment. This is an essential obligation of compassion. We need to revisit what this legislation should be about. It is not merely about complying with our international obligations. It is about remembering the persons who are at the heart of all of this, namely, the victims of trafficking.
It would be wrong if a person who is shown to be a victim of an offence under this Bill could then be prosecuted being undocumented or engaging in activities which they were trafficked to engage in. It is important that the law sends out a strong message of solidarity with the victims of trafficking. It would be wrong if this legislation left this House without establishing this non-prosecution provision firmly, given that it is not going to set out a charter of victims' rights, as Senator Alex White, his Labour Party colleagues and I had hoped.
To go back to the amendments we discussed earlier, how inappropriate would it be if a person who used a person who has possibly been trafficked down the line in the way I sought to criminalise with my last amendment walked free while a person who was a victim of trafficking could be subject to the rigours of the law? That would make a farce of this legislation, despite the best intentions of the Government in bringing it forward.
I thank the Senators who contributed to the debate on these amendments. All of these amendments would grant total statutory immunity from prosecution to victims of trafficking in the various circumstances provided for in the amendments. I have major concerns about amendments like these which I mentioned before and to which I will refer briefly.
I draw the House's attention to section 124 of the Immigration, Residence and Protection Bill. It provides for a no-strings-attached 45-day period of recovery and reflection for victims of trafficking. At the end of that period, the victim is entitled to a further period of temporary residence of six months, which is renewable, where that is necessary for the victim to assist the Garda or other relevant authorities in respect of any investigation or prosecution arising in respect of the trafficking.
In respect of people who have been trafficked into Ireland from within the EU, who would probably be relatively few in number, the simple fact of the commission of an offence is not sufficient reason to deport a person. Persons who are citizens of another EU country have a high standard of rights of residency in our country.
An action plan is being drawn up by the high-level group which we discussed earlier. The group is contacting stakeholders, including the Director of Public Prosecutions concerning all matters of relevance to human trafficking. While I cannot predict the detail of what may be in the plan, it is relevant that in other jurisdictions, such plans offer guidance to prosecutors concerning persons who have trafficked into their countries.
On Committee Stage, I referred to the independence of the DPP. This is not something we can shrug off when it suits us. As Members are aware, under section 2 of the Prosecution of Offences Act 1994, the DPP is independent in the performance of his functions. This is something we should cherish and I have every confidence that he performs his functions in an independent, fair and effective manner. The DPP may decide not to prosecute where it is in the public interest not to do so.
On Committee Stage, I also referred to the dangers of offering a blanket immunity from prosecution in legislation from the point of view of it being seen as an inducement that could be cited by the defence in the trial of an alleged trafficker. Again, this argument was shrugged off as unimportant. It is great to be able to do so when one has no responsibility for the fallout from those particular amendments. I, on the other hand, must be cognisant of the advice I receive and cannot ignore very real arguments about the DPP's independence and the possibility of a statutory immunity being interpreted by a court as an inducement. I understand the thinking behind the amendments and the supporting comments made by the different Senators. No reasonable person could defend the prosecution of victims of trafficking for offences concerned with their fully accepted status as victims. I have full confidence in the ability of the Director of Public Prosecutions and the Garda Síochána to use their discretion and good sense and have regard to the public interest when dealing with the alleged victims of trafficking. For those reasons I regret I cannot accept these amendments.
I am surprised at the Minister of State saying at least twice in his contribution that this amendment proposes blanket immunity from prosecution. It does not. The reason I read out the text of the amendment was to try to convey to the House that it is not a proposal that comprises blanket immunity from prosecution. It is most unfair for the Minister of State to describe it in those terms. There is not much difference between this proposal and the other two, with which it is grouped. My amendment proposes immunity from prosecution in respect of "entry into or presence in the State or for carrying out the labour or sexual acts". However, that immunity attaches only to possible prosecution in respect of those offences where they happened as a consequence of the trafficking of that person. It is not the sort of blanket immunity from prosecution about which the Minister of State talked. It is confined to these alleged acts.
We say, as others have said, that with all the infrastructure we are rightly putting in place to address trafficking it is wrong to leave this thread hanging, whereby a victim still has an exposure to prosecution. Victims of trafficking will remain exposed to prosecution in respect of their entry into or presence in the State or the carrying out these acts in circumstances where they were a consequence of their trafficking to this country. I am surprised the Minister of State has characterised in the way he has.
Is the amendment being pressed?
In the circumstances it seems unlikely to be successful at this stage and for that reason only it is not being pressed.
I move amendmentNo. 12:
In page 10, between lines 25 and 26, to insert the following:
"12.—(1) Subject to the subsequent provisions of this section, a person who is an alleged victim of an offence undersection 3 or 5, or section 3 (other than subsections (2A) and (2B)) of the Act of 1998, shall be given leave to remain in the State by the immigration officer concerned.
(2) Subject to the subsequent provisions of this section, a person to whom leave to remain in the State is given undersubsection (1) shall be entitled to remain in the State for a period of 6 months which may be renewed.
(3) The Minister shall give or cause to be given to a person referred to insubsection (2) a temporary residence certificate stating the name and containing a photograph of the person concerned, stating that, without prejudice to any other permission or leave granted to the person concerned to remain in the State, the person referred to in the temporary residence certificate shall not be removed from the State before the 6 month period has elapsed.
(4) An immigration officer may, by notice in writing, require the person referred to insubsection (2)—
(a) to reside or remain in particular districts or places in the State, or
(b) to report at specified intervals to an immigration officer or member of the Garda Síochána specified in the notice, and the person concerned shall comply with the requirement.”.
The amendment proposes to give an alleged victim of trafficking six months' temporary residence which may be renewable in the State. I do not propose to go into any detail on this issue at this time. It will be more appropriate for discussion when the Immigration Residence and Protection Bill comes before the House after Easter. I am sure Senator O'Reilly will have the opportunity to contribute on that important Bill. I have already referred to section 124 of that Bill, which provides for a no strings attached period of reflection and recovery of 45 days. It also provides for a further period of temporary residence of six months in certain circumstances which may be renewable. The person who decides whether a person is a suspected victim of trafficking is a Garda superintendent. There are other differences between section 124 and this amendment and they can be discussed when the Immigration Residence and Protection Bill comes before this House.
I take the opportunity to repeat an undertaking given by the Minister, Deputy Brian Lenihan, and me previously that in the period between the coming into operation of this Bill and the Immigration, Residence and Protection Bill, the provisions of section 124 will operate on an administrative basis. I hope that meets with Senator O'Reilly's concerns.
I move amendment No 13:
In page 10, between lines 25 and 26, to insert the following:
12.—A person who is a victim of an offence under this Act shall not be prosecuted for entry into, or presence in the State.".
I should have said in the earlier discussion that this amendment does not go as far as the Labour Party's amendment, in that it would provide immunity from prosecution only in the context of a person's "entry into or presence in the State". I recognise that limited strike is unlikely to succeed and therefore I will not press the amendment.
I move amendment No 14:
In page 12, after line 13, to insert the following:
15.—Section 7 of the Criminal Law (Sexual Offences) Act 1993 is hereby amended as follows—
(a) by deleting the words “in a street or public place”, and
(b) after the word “prostitution“, to insert “or any person who uses the services of a prostitute“.”.
The Long Title states clearly that it is for the purposes of amending certain enactments, some of which are named, and to provide for matters connected therewith. This issue was addressed clearly by Senator Regan and he is correct. Senators who believe this amendment goes beyond and refocuses the Bill are incorrect — it does not purport to do that. Sections 5 and 13 make reference to the 1993 Act. It does not change it but takes elements from it. I do not say that in an argumentative way nor do I direct that comment at the Minister of State — I direct that comment in another direction altogether. It is quite in order, as the Government has done in parts of the Bill, to provide for matters connected therewith because that is included in the Long Title of the Bill. That is the way it stays.
The issues are inextricably linked; these are related matters. We should not leave the Bill as it is without agreeing amendment No. 14. That amendment does not decriminalise prostitution. It merely moves prostitution to a level playing pitch wherever it takes place. Whether it takes place in a public or other place it ensures the person can be charged. It is inextricably linked with trafficking to the extent that if we leave the Bill as it is, we will have the situation as outlined by Senator Keaveney that if somebody goes into a brothel and avails of the services of a person who was trafficked, it is a crime and if somebody avails of the services of a local person it is not a crime. In terms of equity that is a daft way to leave things. It is no more than a tidying up issue.
It is never too soon to do the right thing. The strongest and most passionate contribution on this matter was made by Senator McDonald on Committee Stage and I agree with every word she said. However, tonight she took the position of a Government Senator, to which I do not object. It was similar to St. Augustine in that they want to do the right thing but not quite yet.
I did not say that.
All I am saying is that I have total empathy with the points the Senator made. This amendment is a tidying up exercise. It would not mean a major change. It would simply create a sense of equity and equality of guilt wherever it happens.
I am not raising the big debate of legalising or otherwise prostitution. I am simply saying that what is criminal on the street should be criminal elsewhere. I am suggesting that if it is criminal to do it with a trafficked person, it is criminal to do it with a local person. Those are not difficult issues. On that basis I am pressing the amendment.
I am happy to second the amendment. I endorse everything Senator O'Toole said. I do so more in the spirit of hope than anticipation that it will see the light of legislative day.
- Burke, Paddy.
- Buttimer, Jerry.
- Coffey, Paudie.
- Cummins, Maurice.
- Healy Eames, Fidelma.
- Mullen, Rónán.
- O’Reilly, Joe.
- O’Toole, Joe.
- Regan, Eugene.
- Brady, Martin.
- Callanan, Peter.
- Callely, Ivor.
- Carty, John.
- Corrigan, Maria.
- Daly, Mark.
- Feeney, Geraldine.
- Hanafin, John.
- Keaveney, Cecilia.
- Kelly, Alan.
- MacSharry, Marc.
- McDonald, Lisa.
- Norris, David.
- Ó Domhnaill, Brian.
- Ó Murchú, Labhrás.
- O’Brien, Francis.
- O’Sullivan, Ned.
- Ormonde, Ann.
- Phelan, Kieran.
- Walsh, Jim.
- White, Mary M.
- Wilson, Diarmuid.
May a teller abstain from a vote?
It is a matter for any Member to decide what he or she will do when the division is taking place.
I understand that. Can a named teller——
The sheets have been signed by all the required tellers who have agreed the result.
There is confusion on the Government benches.
It must be contagious, given that Members opposite were confused earlier.
It is doing the rounds.
The Greens are quiet now.
I thank all Members who contributed to the debate on Second, Committee and Report Stages. It is important legislation. I thank the House for its co-operation.
I thank the Minister of State for his patience this evening and for taking on board many of the amendments dealt with previously in the Dáil. It made it easier for us to resolve many issues even though we had a protracted debate on some of them. I appreciate the Minister of State's indulgence.
I, too, thank the Minister of State for his time during Committee and Report Stages of the debate on this matter. It has been a long night.
I believe that once this Bill has passed through the Lower House, the message will go out that human trafficking internationally need not bother coming to our shores. Human trafficking is the fastest growing crime and I look forward to this badly needed legislation on our Statute Book. I hope the Minister of State will take on board some of the issues raised in the course of this debate. These issues require immediate attention and I note from the Minister's reply that this will happen. I look forward to debating in this House the criminalisation of the purchase of sexual services and other related crimes. As an island, we more than most need this protection. I am glad this legislation will soon become law.
I, too, congratulate the Minister of State and wish to express my satisfaction that this legislation has completed its passage through the Dáil and Seanad. Obviously, it does not contain everything I would have liked, but it is welcome legislation which will assist us in addressing an important issue. I note the Minister of State's earlier comment that this Bill is but part of a wider set of measures with which we will tackle the evil of human trafficking in our midst. It will assist us in complying with our international obligations. Hopefully, we will see an approach which unites this legislative measure with good policy in tackling those who would traffic persons into our country and assists us in providing as best we can for the needs of victims of human trafficking. I thank the Minister of State for his patience and a robust debate. I hope this legislation will bring about good for some of the most vulnerable people in our society.
When is it proposed to sit again?
Tomorrow morning at 10.30 a.m.