Criminal Justice (Smuggling of Persons) Bill 2021: Report and Final Stages

Cuirim fáilte roimh an Aire Stáit, na Seanadóirí agus gach duine eile. Before we commence, 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 it. Each non-Government amendment on Report Stage must be seconded. Amendment No. 1 arises out of committee proceedings and is grouped with amendments Nos. 14, 15 and 18, which are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 1:

In page 7, between lines 10 and 11, to insert the following:

“Report on the rights and protections of the smuggled person

5. The Minister shall, within 12 months of the passing of this Act and on a bi-annual basis thereafter, lay a report before both Houses of the Oireachtas outlining—

(a) the steps which have been taken to ensure that the State has reflected the 1951 Convention relating to the Status of Refugees, including the principle of non-refoulement in all aspects of the operation of this Act, and

(b) the number of cases taken to the European Court of Human Rights and the Court of Justice of the European Union initiated by persons who have been the object of people smuggling or have been prosecuted under this Act and the results of such cases where they are available.”.

I second the amendment.

We could have separated this grouping of amendments, but I am conscious we are constrained by the 90-minute time limit. I agreed to the grouping in that context. The amendments relate to three separate issues. As we discussed at length on Committee Stage, these are the potentially negative consequences of the legislation, which I believe are unintended on the part of the Minister of State and his office. In addition, we are questioning how effective the legislation is in addressing the problem of smuggling it is designed to address.

Amendment No. 1 relates to a core issue we will have to address, which are the rights and protections of smuggled persons. I have highlighted areas of the legislation where there are inadequate protections for the rights of the smuggled person and where the smuggled person, certainly when they are acting in relation to a family member, could inadvertently be subject to prosecution. Crucially, this amendment focuses on the wider picture. We suggest "the steps [that would be taken] to ensure the State has reflected the...Convention relating to the Status of Refugees, including the principle of non-refoulement in all [areas] of...operation of this Act". I am not bringing the convention in; I am aware it is already in law and Ireland is already party to it and is bound by it. The question is how we ensure it is being reflected at all stages.

The reference to the number of cases taken to the European Court of Human Rights and the Court of Justice by persons who have been the object of people smuggling is, again, around the question of human rights. I certainly do not think we should have that very high bar because very few people will be in a position to take cases to the Court of Human Rights or the Court of Justice, but those cases would be a very significant red flag if they were to be taken.

I will focus more on the other amendments. I know my colleague may wish to speak to amendment No. 1 as well. Amendments Nos. 14, 15 and 18 are really about the detail of what happens when we change the law. On amendment No. 14, the rationale for this legislation has been the practical impact of the current laws and the fact there is a perceived difficulty with prosecution in relation to them. This amendment is similarly ensuring we get the law right this time. I am asking for a report on an annual basis showing "the estimated number[s of victims] of human trafficking...the methodology...to produce the estimate and potential alternative methods of estimation...[and] a summary of the outcomes for smuggled persons [who are] identified under this Act, including what proportion of those smuggled persons sought or were granted asylum [or] sought or were granted another form of international protection in the State" and "the number of persons [which is one of the stated purposes of the Bill] found guilty of an offence... and a summary of the sentences imposed".

I will go on to amendment No. 15 because it is not simply about how many people were prosecuted, which is my concern. The Minister of State has said at great length that it is his expectation that those persons who are engaged in humanitarian action will not end up being prosecuted under this Act. He knows I have tabled other amendments where I seek to confirm that by making it clear it is not an offence to engage in humanitarian action, or to act for humanitarian purposes, in the ways outlined under sections 6, 7 and 8. Amendment No. 15, which I hope the Minister of State will accept because it is crucial, is to make sure there is no adverse effect, that is, a potential chilling effect or a stressful prosecution, whereby the burden of proof is moved to the person who is being prosecuted, because that burden of proof is now moving from the prosecutor having to prove criminality. The burden of proof is now being put on a humanitarian actor, which is quite a significant shift.

I ask the Minister of State to lay a report for us detailing how many prosecutions are not pursued due to a humanitarian defence. We spoke at great length on Committee Stage about the scenario the Minister of State, Senator Ward and others see unfolding, which is that where there is a humanitarian defence a prosecution will not be pursued. I am asking if we can track whether that is in fact happening, in addition to the number of prosecutions that are pursued where a humanitarian defence is employed, which is where somebody has gone through the whole process of prosecution, a potential period of imprisonment awaiting trial, periods of having to access legal support, construct a defence and, effectively, having to make that defence in the dock. Then, and this is crucial because it relates to the chilling effect we spoke about, we should track "any impact this Act may have had in respect of the level of engagement of humanitarian organisations in humanitarian activity in respect of smuggled persons".

I will not speak at the same length I have before because we have constraints on time. In summary, Ireland believes that humanitarian search and rescue is a good thing. We directed the national resources of our Naval Service to the humanitarian search and rescue of up to 8,000 people a year because we believed it was a good and not simply that it was acceptable. It was something we channelled our national resources to.

The reason given for not continuing with that has simply been that we have not been given support from others in terms of bilateral agreements with other countries on pursuing humanitarian search and rescue. The established position from Ireland has been that we support it.

NGOs and humanitarian actors stepped into the gap. We went from rescuing 8,000 people in one year to 1,300 the next year to almost none the year after. Humanitarian NGOs and civil society organisations have stepped in. They are performing what we consider to be a good. It is very important that our legislation does not work against that good. That is why Part C is important.

I would urge the Minister of State to accept all of these amendments and track the outcomes for smuggled persons. Amendment No. 15 is crucial if we are going to see if this Bill unfolds as he has expressed the hope it will.

Amendment No. 18 combines a few of these issues. It is another approach to the same thing. It combines the question of the outcomes for smuggled persons, including the number that have been identified, those who have sought or have been given any form of international protection and an examination of the chilling effect on the work of humanitarian organisations. It also includes the way in which section 9, the section which presents the humanitarian offence, has been used in decisions whether to prosecute and the impact of this Bill in terms of Ireland's fulfilment of its human rights obligations, including its obligations under the Convention Relating to the Status of Refugees and the European Convention on Human Rights. Maybe amendment No. 18 is even better. I do not know.

Amendment No. 18 combines the principles in amendment No. 14, in terms of the outcomes for smuggled persons, and amendment No. 15, in terms of how the Bill ends up operating and what its effects actually are. My colleague may wish to speak. I would like the Minister of State to indicate whether he is willing to support any of these reports or provide them to the Houses.

I thank the Senators for their proposals. These are matters we discussed in length on Committee Stage.

I wish to make two points. The first is that a post-enactment report on the Bill will be prepared in accordance with Standing Orders and laid before the House. This will provide an opportunity to address many of the issues raised.

The second point is that I have requested that a briefing be prepared for Oireachtas Members in respect of several of these issues. I would suggest that looking at issues such as the satisfaction of the State's obligations in respect of international protection applicants, people who have been trafficked and how humanitarian organisations engage with migrants before and after they arrive in the State simply through the lens of smuggling offences is not the best way of going about it. People who are vulnerable and require protection may or may not have been smuggled and may or may not have entered the State irregularly.

While there may be situations where law enforcement will be dealing with smuggled persons in difficult situations, such as where a ship has been intercepted, these are a very limited part of the picture. As the Senator will be aware, there is a breadth of work ongoing in this area. As I have said, the appointment of a national rapporteur, the development of the national referral mechanism and the many other initiatives that are ongoing in tandem to this Bill must be allowed to take root.

The Minister of State, Deputy Naughton, this week announced a new public awareness campaign on human trafficking. The key messages it is trying to convey are that human trafficking is a crime that is happening in Ireland, that traffickers often profit from the misery of their victims in forced employment and that the public needs to be vigilant. The #anyonetrafficked 2021 campaign will be rolled out on social media and in key transport hubs across the country until the end of November. It has been undertaken with the support of a number of other State agencies and non-State organisations.

With that in mind, I would like to reassure the Senator of my Department's commitment to the type of inter-agency collaboration between the Department of Justice and NGOs that is being sought through these amendments. Work has also been done on the development of training through NGOs, targeting front-line staff in industries such as hospitality, airline and shipping who may have come into contact with trafficked persons and providing dedicated accommodation for the female victims of sexual exploitation. For the reasons outlined on Committee Stage and today, I am not in a position to accept these amendments.

I will be brief. I want to place on the record the support of Sinn Féin for all of these amendments.

I am glad that there is engagement on this area with civil society organisations. There was a lot of disappointment that so many of the recommendations made by the Irish Human Rights and Equality Commission, IHREC, were not reflected in the Bill. I hope there will also be engagement with it on the human rights obligations outlined.

The Minister of State may not be able to come back to the post-enactment report, but I hope he will. Post-enactment reports can be blunt and refer to the number of prosecutions full stop. Detailed issues, such as the number of prosecutions in which section 9 was found to be relevant or the outcomes for smuggled persons who have had engagement with the Bill, might be included. I hope that the Minister of State will indicate whether those very important metrics will be reflected in the post-enactment report and that he ensures they are part of it. We should not have a simple headline figure. I see the Minister of State is nodding, and I hope he is indicating that will be the case. It will be important for us to know how this law is panning out.

I understand a document is not the vehicle for addressing smuggling, but smuggling legislation is a key intervention within this landscape. That is why it is important that we try to get it right. I will press a couple of these amendments because they are good. I will follow up directly with the Minister of State on the post-enactment report.

Does the Minister of State wish to respond?

I would expect that any post-enactment report would be comprehensive and detailed.

I will press the amendment.

Amendment put and declared lost.

Amendment No. 2 arises out of committee proceedings. Amendments Nos. 2 and 3 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 2:

In page 8, line 10, after “profession,” to insert “whether for profit or otherwise,”.

I second the amendment.

Amendments Nos. 2 and 3 are a different approach, but build on the discussions we had on Committee Stage. I also want to recognise the engagement of officials in the interim period between Committee and Report Stages. That has been very constructive.

Amendments Nos. 2 and 3 relate to a core aspect of the Bill. Saying that a person can have a defence is very different from saying that a person will not be prosecuted or is not committing an offence. We have spoken about the potential chilling effect of the signal that sends. In many cases, humanitarian actors and NGOs are people who are not necessarily very well resourced. They are taking an important step. There is a recognition that we do not want a risk of unnecessary or inappropriate prosecution in the Bill for persons engaged in business. There is provision in the Bill, as it stands, that it should not be an offence to perform activities under sections 6 and 7 in the presence of a smuggled person in the State where a person is doing so in the course of his or her ordinary business or work. It is a sensible element of the Bill. It is designed to ensure that if somebody rents a room in a bed and breakfast, takes somebody somewhere in a taxi, lets somebody on a bus or sells somebody a service in a shop in the ordinary course of events, even where this has an impact such a person would not be prosecuted. We know it is not constructive to have a threat of prosecution hanging over ordinary and good actions.

One of these amendments is about trying to ensure that when we talk about people who are doing things in the course of their work and their professions, we also include NGOs who are doing things in the course of their ordinary work. Employees of NGOs do food runs and support people with shelter or basic needs. As we know, many humanitarian organisations are trying to ensure that vulnerable persons get through the winter. This involves ensuring the kind of important and supportive work we saw in Lesbos, and which we also see in communities in Ireland, does not carry any risk of prosecution.

Amendment No. 2 is to ensure that when we describe kinds of ordinary work, that it includes voluntary work, that it is framed as "whether for profit or otherwise", and that we are not simply protecting business owners but also protecting those who are volunteers within organisations. Amendment No. 3 is an expansion of that because while the safety net clause may be in the Bill, it relates only to those who have a presence in the State. I would like to see the same exemption applied in relation to "entry into or transit across". While this would not deal with all of the humanitarian action that I believe should be regarded as not an offence, it would deal with humanitarian NGOs who do this as part of their ordinary work and it would give some more protection to them in terms of their engagement in the kinds of activities outlined under sections 6 and 7, if they are doing so under the rubric of their employment or their volunteer role with a humanitarian NGO. Amendment No. 3 would slightly expand what is in the bill in a constructive way, but it may be halfway to having a full humanitarian action exemption, which I favour, and having a humanitarian defence that the Bill sets out. This would at least take a certain cohort of humanitarian actors out of the realm of having to face potential prosecution. I hope the Minister of State, Deputy Browne, might be able to support these amendments.

We had this discussion on Committee Stage, with regard to Senator Higgins's amendments. I appreciate very clearly the difference between an exemption and a defence, and I understand where the Senator is coming from. In the context of amendment No. 2, which adds in the words "whether for profit or otherwise", I can see the value in that and I do not have a difficulty with that.

On the proposed insert in subsection (3), I wonder if two issues arise there. My understanding is that it expands the provision of the defining section 5 to also include an exemption in respect of section 8, which is the provision of fraudulent travel or identity documents for the purposes of assisting transit into or the presence in the State. While I am very much alive to what Senator Higgins is suggesting for putting in place a layer of protection for people who are doing things in a bona fide way and who might inadvertently provide something without ever intending to commit an offence, I do have a small concern that the kind of activity involved in section 8 is of a different calibre to the potential offences under sections 6 and 7. It is in a different category to those offences and I would be less inclined to extend the provisions of the existing subsection (2) through a subsection (3) in to cover section 8 as well.

In addition to that, I come back to what I said on Committee Stage. I am mindful of the difference between an exemption and a defence, but one of the pitfalls with prosecuting offences like this is that one can hamstring the prosecution and prevent it from ever bringing an action where it thinks it might be appropriate to bring one. However noble it might be, that is the consequence of creating an exemption. I have a concern with the further extension of that to cover certain categories whereby an unintended consequence might arise and that somebody who is clearly a person who should be prosecuted for one reason or another, or who in the opinion of the prosecutor should be prosecuted, would then be able to avail of an exemption and would be able to say "Well you cannot prosecute me for this". My concern about subsection (3) as proposed through amendment No. 3 is that there is an unintended consequence that might arise from that. We may end up giving an exemption to someone and giving him or her a free pass who might not be deserving of it.

We have discussed how important it is in the context of this legislation to enable prosecutors and also to defend humanitarian activities and those involved in humanitarian activities. At the same time, however, I come back to what I said on Committee Stage about relying on the prosecutorial discretion of the prosecutorial authority, and trusting in the fact that it does not want to prosecute people who should not be prosecuted, and to a certain extent understanding that we must, even when framing legislation, allow for the discretion of a prosecutor to make these decisions. It is impossible, in drafting legislation of this breadth, to provide for every individual case. The reality is that no matter how many of these amendments go in - I am not saying there are not some that should go in - and no matter how many changes we make, we will never have a piece of legislation that comprehensively addresses every possible scenario. We will, therefore, be necessarily reliant on the discretion of the person who has to make a decision about a prosecution. My concern about amendment No. 3 in particular is that it removes that discretion and we would try to cover everything in a legislative format, which is not possible, and this will have the potential for an unintended consequence of giving somebody a free pass who should not get it.

I thank the Senators for their comments. Section 5(2), while a short provision, is very important for the broader context of the Bill. It provides that a person does not for the purposes of the offences in sections 6 and 7 unlawfully assist presence in the State when providing goods or services in the ordinary course of his or her business trade or profession. It is important to emphasise that it is intended to provide a clarification on the scope of the offences rather than to provide an exception of itself. It does not prejudice the narrowness for specificity of sections 6 and 7, or suggest that other activities not mentioned do constitution assisting presence. Rather, it makes absolutely clear for the avoidance of doubt, that certain activities do not constitute an offence. This is particularly important for accommodation. It is motivated by the work done at European level by the EU Agency for Fundamental Rights and others, and also by the work being done in Ireland to address the practical issues faced by those who come here.

Fears have been raised an EU level that where a landlord is aware that a person is in breach of immigration law, that providing accommodation in the ordinary course of business could be interpreted as unlawfully assisting the presence of the person. We do not agree with this interpretation and have made absolutely clear that it does not apply in this legislation. That is less about protecting landlords than about ensuring that people can have access to accommodation and other essentials without any question about their immigration status. We do not want a situation where proof of status is sought before letting property or providing any other services.

I will now turn to the specific amendments. The difficulty with amendment No. 3 is that the logic that applies to assisting presence is not the same as that which applies to assisting entry or transit. People assisting entry in the course of their business are very deliberately and correctly within the scope of the offences. I will give an obvious example: a mini-bus operator who knowingly facilitates smuggling cannot escape liability by showing that he or she also has a legitimate transit business. The same applies to truck drivers, boat hire and so on. It is not even a question of where the burden of proof lies. The amendment would exclude conduct that we consider should definitely be criminal and, accordingly, it would be directly contrary to the policy of the Bill. Under the circumstances, I cannot accept amendment No. 3.

Amendment No. 2 is quite different. I am aware that Senator Higgins has been working with the Department officials on the wording to provide additional clarity. The amendment is consistent with the spirit of the existing provision. As I have said, section 5(2) exists to clarify the offences rather than to include or exclude things from them. I do not believe as the Bill stands NGOs providing accommodation, for example, would be committing an offence any more so than a landlord would. However, while I do not think the amendment fundamentally changes the meaning of the subsection, I am happy to add the clarification sought. On that basis, I am happy to accept amendment No. 2.

We return to Senator Higgins. There was some good news for you there.

I am pleased. It will certainly give some support or assurance to some of those working in the voluntary sector. I thank the Minister of State, and I thank him for the engagement of his officials on this matter.

On amendment No. 3, I accept some of the concerns. I note that amendments Nos. 7, 8 and 9, which are forthcoming, explicitly do not include section 8. I recognise that there is a different quality to the actions taken under sections 6 and 7 versus section 8. If that is the core issue perhaps actions could be taken and an amendment even brought by the Government in the Dáil Stages of this legislation in ensuring that sections 6 and 7 might address the issue. Amendments No. 6 and 7 might be considered for protections. Again, there is a concern. This is really another way of coming at the humanitarian issue. It is not that we are removing discretion. As a whole, this Bill is inserting a very large amount of discretion. Previously, a burden of proof was on the prosecutor but now the prosecutor is being given a very wide swathe of discretion. While we will not come to it until later, I really believe that amendment No. 15-----

Sorry, Senator. I really do not want to interrupt you but, really, I would prefer that we would wait to discuss all those amendments. You will have an opportunity to discuss them-----

This relates to this amendment. I am saying-----

We are discussing amendments Nos. 2 and 3, but-----

We are discussing amendments Nos. 2 and 3. I am saying that this is in response to-----

I am conscious of the time and to make sure we get through all your amendments.

I will move ahead. It is fine. I am simply saying, in response to the question of the discretion, that if we are to leave so much to discretion, it is appropriate we monitor how that discretion is used. That is my simple concluding point. I think it is a relevant one. Again, I thank the Minister of State for accepting amendment No. 2.

Amendment put and declared carried.

I move amendment No. 3:

In page 8, between lines 11 and 12, to insert the following:

“(3) For the purposes of section 6, 7 and 8 assisting the entry into or transit across a state does not include the provision by another person, in the ordinary course of his or her business, trade or profession, of a good or service to the person.”.

I second the amendment.

Amendment, by leave, withdrawn.

If amendment No. 4 is agreed, amendments Nos. 5 and 6 cannot be moved. Amendments Nos. 5 and 6 are logical alternatives to amendment No. 4. Amendments Nos. 4 to 6, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

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

“(8) Where a person who produces, possesses or controls a fraudulent travel or identity document does so in respect of a family member, and that person is themselves the object of people smuggling, they shall not commit an offence.”.

I second the amendment.

I will not interrupt you this time, Senator Higgins.

Amendments Nos. 4 to 6, inclusive, relate to a core issue. On Second Stage the Minister of State was extremely clear that his intention was certainly not that a smuggled person would end up potentially facing prosecution under this Act, and I know that that is not the intent. I highlighted on Committee Stage the inadvertent risk that, as the Bill was phrased, a smuggled person - specifically, I have highlighted the issue of traveller identity documents, though I know there may be some wider concerns - who has, for example, the identity document of a child or other family member could find himself or herself falling under the frame of smuggling under section 8. It is therefore really important we clarify this.

I have suggested three different ways in which this might be done. Where a person, as described in section 8, produces, procures, provides, possesses or controls a fraudulent traveller identity document in respect of a family member, and where that person is himself or herself the object of the people smuggling, that person should not be deemed to be committing an offence. In such a situation there might be a whole family being smuggled and one of them may have the identity papers for the others. We should not have a situation in which families, just when they might be trying to enter the international protection process, to seek asylum or whatever else, have, in parallel, one of their family members facing a potential charge of smuggling, even though that person is the smuggled person who is explicitly not the target of this legislation.

Amendment No. 6 contains a slightly different wording. In that amendment I speak specifically about family members under the age of 18, though I think the amendment relating to wider family members is a better framing. There are also, for example, people who may have identification for an elderly parent or somebody who does not speak the language. There may be one family member who can speak English, Spanish or whatever the language might be and who is nominated to engage. Losing that person would be very significant for a family.

Amendments Nos. 4 and 5 are variations of the same. Amendment No. 6, as I said, slightly constrains the matter to family members under the age of 18.

I have had some engagement with the Minister of State's Department. I think he has recognised that there is a potential lacuna or space for ambiguity in the law in this regard. I would appreciate his response as to whether he feels he can address this or accept these amendments.

I thank the Senators for their comments. As I have made clear throughout the debate on the Bill, we do not intend to criminalise people who are being smuggled, and I think that extends properly to parents travelling with their children, for example. I believe that, as it stands, that would fall under humanitarian assistance. I appreciate that Senator Higgins and I differ on that being framed as a defence, and we will discuss that further when we come to the next group of amendments. I recognise, however, that further clarity may be desirable, subject to it not creating ambiguity elsewhere. On that basis I have asked for further consideration to be given by officials to the drafting on this question and on the non-criminalisation amendments, that is, amendments Nos. 12 and 13. It is a difficult area. We need to ensure that smugglers themselves do not fall under any definition of a smuggled person, for example, by having paid someone else in the chain for false documents in respect of themselves. I would also prefer any clarification to apply to offences under sections 6 and 7 as well as to the documentary offences under section 8. There is also a role for prosecutorial discretion. To cite the most recent DPP guidelines on the decision to prosecute, "a prosecutor should ... [take] particular care where there is information to suggest that the suspect is a victim of crime". The guideline goes on to refer to trafficking as an example.

I cannot commit to a particular form of amendment at this stage - that will be subject to the advice of the Attorney General's office - but if the advice is that further provision would be beneficial, I will introduce the necessary amendments to the Dáil and return to the Seanad with them. Given that, I cannot agree to the amendments at this stage but I am, of course, happy to engage with the Senators further in due course on them.

I thank the Minister of State for his engagement and welcome the fact that he is looking to ensure that that clarification, if it is inserted, will be a little wider than the issue I have addressed of documentation but will look also at sections 6 and 7. That is positive. I again emphasise that I do not believe the humanitarian defence is appropriate in respect of a smuggled person because we are talking about people who, by their nature, are probably entering a different legal process - for example, the international protection process. Even the question of there being a potential prosecution, whether or not there may be a successful defence, could jeopardise the well-being and the access to rights for an entire family unit. I think that that is how the Minister of State is minded but I urge him to be very robust in being clear that the smuggled person is not the object of prosecution. I know he wants to clarify where that smuggled person is himself or herself. I think that that clarification should be able to be teased out because we are quite clear. I almost have two safety nets in some of these amendments, whereby reference is made to people who are the object of smuggling themselves and where it is done in respect of a family member. That should be clear because if a smuggler is engaging in these actions in respect of other persons who are not the smuggler's family members, that would count as an exemption in respect of the actions taken for the family member. However, that same extension would not extend to other actions the smuggler may have carried out for those who are not his or her family members. I think that can be addressed. I urge the Minister of State to make this very clear in the definitions, which is I think what he is trying to address, rather than placing people in a position of having to try to exercise a defence, especially given the likely vulnerability of those persons and their access.

Again, I thank the Minister of State for his engagement on this. I will be watching the Dáil very closely and I hope we have the Minister of State back in the Seanad with amendments that address this issue.

Amendment put and declared lost.

I move amendment No. 5:

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

“(8) Where a person who produces, procures, provides, possesses or controls a fraudulent travel or identity document does so in respect of a family member, and that person is themselves the object of people smuggling, they shall not commit an offence.”.

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 6:

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

“(8) It shall not be an offence where a person who produces, procures, provides, possesses or controls a fraudulent travel or identity document does so in respect of a family member under 18, and where that person is themselves the object of people smuggling.”.

I second the amendment.

Amendment, by leave, withdrawn.

If amendment No. 7 is agreed, amendments Nos. 8 to 11, inclusive, cannot be moved. Amendments Nos. 8 to 11, inclusive, are logical alternatives to amendment No. 7. Amendments Nos. 7 to 11, inclusive, are related and may be discussed together by agreement.

I move amendment No. 7:

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

“Protection from prosecution

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

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

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

I second the amendment.

I welcome back the Minister of State. I will be brief on these amendments. We covered them a lot on the previous Stage of the Bill. They go back to the recommendation IHREC made.

We spoke a great deal in the last session about the journey of a smuggled person and people obviously do not take that journey very lightly. The Journal reported a number of weeks ago that on 18 July people were pulled from the Mediterranean Sea and that there were 57 other migrants on the same boat when it had left its port. These amendments would seek to protect those humanitarians and aid workers who help to save those lives that we keep reading about and seeing the reported figures on.

Previously, this work was carried out by the European defence forces under Operation Sophia, with the assistance of some of our own ships given to those stranded at sea. Now that work is being left to NGOs such as Médecins Sans Frontières, MSF, which we need to protect in this legislation. Under the current legislation, this work is in danger of ceasing because the NGOs are threatened with prosecution. I am therefore appealing to the Minister of State to accept these amendments to stop further loss of life and to be able to facilitate humanitarians in their very important work.

Ireland was better than Operation Sophia because we saved 17,000 lives when we were operating bilaterally with our own ship. When we joined Operation Sophia that figure was reduced but there was still search and rescue carried out.

All of this relates to a European directive so it is not us on our own. It is exactly as was said on the question of prosecutions and of a chilling effect. All of those are not simply speaking to what might happen in Ireland but also to how this directive and law is being interpreted across Europe. That is why we are pressing for the best, most thoughtful and most careful interpretation in the protection of humanitarian action and human rights. This is not simply about our own actions because I hope this kind of interpretation will enable the Minister of State and his colleagues, when engaging with their European peers at the Council of Ministers and elsewhere, to advocate for proper respect for humanitarian action. This is an example for us to provide a positive and constructive template. I hope the Minister of State will take these amendments on board and press these points further in situations where we have seen aggressive prosecutions of humanitarian NGOs.

I will speak briefly on this issue, which I have addressed in the Council of Europe, our human rights body for Europe. I wish to concur with everything both speakers have said. I have real concerns about the direction of travel with regard to the incredible work that NGOs do and this move to threaten them potentially with prosecutions. It would be wonderful if the Government could include this amendment to ensure we are not in any way, intentionally or unintentionally, aligning ourselves with that train of thought.

If Members wish to speak, I ask them to raise their hands and I will ensure their voices are heard.

I thank the Senators for their proposals. Amendments Nos. 7 to 9, inclusive, and 11 are similar in that they would effectively reframe the humanitarian assistance defence as being elements of the offence and accordingly it would be for the prosecution to prove the contrary.

Amendment No. 10 provides for a bar to prosecution under similar circumstances.

The question of where the burden of proof should lie was discussed at length on Committee Stage and it is useful to recap now. A significant motivation for this Bill was to increase the effectiveness of criminal sanctions in this area. The very clear advice we received from the Garda and from prosecutors was that the existing framing in the 2000 Act of a requirement for material gain was a major practical block to successfully prosecuting organised criminal smugglers. The reason for that, as I think is widely accepted, is that the payment will not typically take place in the state and the smuggled persons may not co-operate with authorities for fear of the consequences for them and their families at home.

The starting point has to be that the existing legislation falls considerably short of providing an effective deterrent to people smugglers. We have sought to strike an appropriate balance that reflects our intention, which is to focus on for-profit smuggling while also not placing an impossible burden on prosecutors. I wish to make clear that allowing smugglers to operate without risk of prosecution does not further any humanitarian motive. It places more and more people in the hands of criminal gangs who, at the very least, will charge exorbitant fees, will likely place the people smuggled in danger and may exploit them in the most shocking of ways.

The State is not at odds with those providing genuine humanitarian assistance to migrants. We simply have to ensure that well-intentioned measures do not unintentionally undermine the criminal sanctions we are putting in place. Under the EU instruments for assisting entry-in-transit, we cannot incorporate a blanket element of financial material gain either as an element of the offence or as a defence. We can make provision for humanitarian assistance, as we have done. We have done so as broadly as possible. In providing for a broad and generally applicable humanitarian assistance defence, we have gone well beyond what most other member states have done. This discretion has been taken up by just seven other states and in many cases is far more narrowly drawn.

Our terms with regard to where the burden of proof lies rest on the question of who is best placed to meet it. One can take entry as an example. The prosecution must prove that the accused intentionally assisted someone to enter the State in breach of immigration law and that the accused knew or had reasonable cause to believe that the entry was a breach. That is a substantial burden. It is showing that a person intentionally facilitated unlawful entry. If that is proven and if the accused is then claiming that they were acting for humanitarian motives, it is reasonable to require them to provide positive and convincing evidence.

The Senators have raised how significant a prosecution would be for a humanitarian actor. While accepting that being prosecuted is, of course, very serious for anyone, I do not agree that the framing of a humanitarian assistance provision as a defence gives rise to a real risk of unjustified or politicised prosecution. The Director of Public Prosecutions, DPP, is independent in its functions and it establishes clear and well-understood guidelines on decisions to prosecute. Critically, the guidelines state that a "prosecutor should not lay a charge where there is no reasonable prospect of securing a conviction before a reasonable jury." There is simply nothing to suggest that the DPP charges people to make political points where there is no prospect of a conviction.

I do not think the bar to prosecution proposed in amendment No. 10 is realistic. We would be asking the DPP to make a determination of fact, which would properly be for a court to do. Assuming that the DPP believes there is some prospect of a conviction, then the language would not prevent that. Even if we were to accept the Senators' hypothetical politically motivated prosecutor, these provisions would not prevent that. Such a prosecutor could simply state that they were satisfied that the evidence was there. Given the breadth of the defence as it is drafted, I do not believe there is a real risk of an unjustified prosecution and I do not accept that bona fide organisations now find themselves in jeopardy. Similar language has been used in the Illegal Immigrants (Trafficking) Act 2000 and I do not believe that there has been politically motivated prosecutions in those cases. I simply do not believe that any real risk exists in these circumstances but we need to secure prosecutions against those who are smuggling. In the circumstances, I cannot accept the amendment.

This comes down to a very large transfer of responsibility for the policy outcome that we wish to achieve towards the discretion of prosecution. If we believe that as an outcome, persons engaged in humanitarian actions should not be prosecuted for an offence, and if that is what we are hoping will happen, we should reflect that in the legislation rather than hoping that will come out from the process. If, even having removed the for-profit piece, the burden of proof is now to be placed on those being potentially charged with smuggling, as per the briefing from the Department, they should at least be given the opportunity to demonstrate that burden of proof before prosecution, in that they could say they are not committing an offence.

As the Minister of State has said, if there is a political motivation we might still see a prosecution, but that would be a different situation. If a prosecutor is repeatedly prosecuting people for something that has been found to be an offence, that becomes an issue and a pattern can be clearly identified. If a prosecutor chooses to prosecute people despite them having a defence to the offence, and that prosecutor is operating entirely within his or her permitted discretion, there is nothing we can do to address that pattern except to change the law again. That is why I have suggested that if this is how we plan to have it unfold, we need to track what happens with the prosecutions. This is not in terms of individual instances but if we are seeing cases coming up and the Article 9 humanitarian defence is being used - if, by its nature, that is happening in the dock - we will know that the deterrent or chilling effect that the Minister of State believes the humanitarian defence will have on a prosecutor prosecuting humanitarian NGOs is not working. Again, we are leaving a great deal to chance and discretion.

I ask the Minister of State to note our earlier point.

This legislation is not happening in a vacuum; it is happening in the context of equivalent similar legislation throughout Europe. Other European countries have had very aggressive prosecutions. I will not detail the cases again, but numerous members of MSF and other NGOs are being prosecuted. The prosecution is not necessarily to achieve a conviction, but to create a financial, social and psychological burden on NGOs. If we go down the route of prosecutorial discretion here in Ireland, we are also setting the template for that to be the model employed in other countries which are transposing the directive into their own laws.

I believe we should have aimed for something better because the jeopardy relating to the chill effect on humanitarian action is greater than the jeopardy regarding prosecutions in the legislation as framed. I regret that the Minister of State will not accept the amendments. I hope he will consider the issue further in the Dáil and look at it in that context.

Unfortunately, we know of such people. We had a member of a refugee appeals tribunal who said "No" to everyone for years and that person was acting within their discretion. This was somebody who effectively gave blanket refusals to everybody. I do not want us to end up in such a situation. That is not about the individuals; they have their discretion. It is about not putting too much into that space. I hope the Minister of State will reflect upon and engage with these issues further in the Dáil.

I made it very clear as we started proceedings today that a Senator may speak only once on Report Stage except the proposer of an amendment who is entitled to reply.

I did not want to interrupt. It should have been Senator Ruane. Unfortunately, I cannot now let Senator Ruane in. It is just the way it happened, but I want to be straight with the Senator. I apologise because I should not have allowed things to continue.

It was my oversight. I forgot that I had not proposed in this instance.

I hope both the Senators understand.

Amendment put and declared lost.

I move amendment No. 8:

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

“Protection from prosecution

9. A person shall not be considered to have committed an offence under section 6, 7 or 14 where the person engaged in conduct alleged to constitute an offence under section 6, 7 or 14

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

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

I second the amendment.

Amendment put and declared lost.

I move amendment No. 9:

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

“Protection from prosecution

9. A person shall not be considered to have committed an offence under section 6, 7 or 8, where the person engaged in conduct alleged to constitute an offence under section 6, 7 or 8

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

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

I second the amendment.

Amendment put and declared lost.

I move amendment No. 10:

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

“Protection from prosecution

9. Where a person can demonstrate to a level of reasonable satisfaction that they have engaged in conduct alleged to constitute an offence under section 6 or 7 for humanitarian purposes, that person shall not be liable for prosecution for said conduct.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 11:

In page 11, to delete lines 8 to 11 and substitute the following:

“9. (1) It shall not be an offence under sections 6, 7 or 8 where a person engaged in behaviour alleged to constitute an offence under those sections—”.

I second the amendment.

Amendment put and declared lost.

If the question on amendment No. 12 is agreed, amendment No. 13 cannot be moved. Amendment No. 13 is a logical alternative to amendment No. 12. Amendments Nos. 12 and 13 are related and may be discussed together by agreement.

I move amendment No. 12:

In page 11, after line 40, to insert the following:

“Protection of smuggled persons from prosecution

11. A person who has been the object of people smuggling and derives no financial benefit from people smuggling shall not be liable for prosecution under any provision of this Act.”.

I second the amendment.

I feel terrible because we did not get to tease out some really important points on the last amendment.

This amendment again relates to the protection of smuggled persons. These two issues are constantly entwined because we are coming to the protection of the humanitarian worker and the protection of the smuggled person. The purpose is to ensure that we do not have wrongful prosecution - a prosecution which creates a chilling effect on the humanitarian actor or creates a further damage or harm to the smuggled person, who, as the Minister of State described in his speech, will in many cases have experienced exceptional difficulties and will be extremely vulnerable.

I have proposed a blanket safety clause in amendments Nos. 12 and 13. For both the smuggled person and the humanitarian actor, we need to err on the side of protection for different, but equally important, reasons. While this is not quite here, it is between the lines. When we talk about the damage done by smugglers and the importance of prosecuting them, we must remember that smuggling is happening because some people are desperate to travel and we do not have safe passage routes. I have not tabled amendments because I recognise that is a wider piece. However, I would like to hear a response. We really need to engage on that question of improving our safe passage routes.

Smugglers are not the cause of smuggling; desperation is the cause of smuggling. It is then exploited by smugglers for profit. The core driver is that many people are in extremely terrible situations. In some cases, they are seeking family reunification but are excluded by narrow family reunification laws. In some cases, they are fleeing direct conflict. In some cases, they would seek asylum but physically cannot get to the place where they need to be in order to seek asylum. Those are the people who in many cases are being smuggled. It is important that this legislation does not put a further burden on those people because the responsibility for them being in that situation lies partly with the smugglers, but it also lies partly with states and the failure to provide safe passage routes.

I echo everything that Senator Higgins has said. Under the 2002 EU directive, the facilitator of entry and transit does not need to have obtained any financial benefit from smuggling in order for it to be considered a crime. However, Article 6.1 of the protocol requires that the act be for financial gain or other material benefit. The United Nations Office on Drugs and Crime has gone further and stated that the financial and material benefit element of the crime is a key component of the international definition. It notes that it was intended by the drafters to ensure that those who provided support for smuggled persons for humanitarian and family reasons were not prosecuted. Criminalising people for smuggling without requiring a financial or other material element to the crime may have the effect of criminalising a wider range of circumstances not intended under the protocol, including, for example, people providing assistance on the basis of family or for humanitarian grounds.

EU research has found that those involved in providing assistance to irregular migrants report that they fear sanctions. They can also experience intimidation by some national authorities when carrying out their work. Therefore, I ask the Minister of State to accept these amendments in order to protect these vulnerable people and those who assist them.

I thank the Senators for their comments. As I made clear when discussing the previous group of amendments in respect of family members, we do not intend to criminalise people who are being smuggled. However, given how the offences are already phrased, I do not believe a blanket provision is necessary as it would tend to create more uncertainty.

The issue is that the bar for someone being considered to have been the object of people smuggling may be quite low and may be different from what the Senator intends. For example, as I mentioned, someone who has obtained false documents to facilitate their continuing presence might fall under it. A blanket provision would tend, therefore, to do something an organised smuggler may be able to exploit. I understand that the Senator is trying to avoid that with the reference to "derives no financial benefit", but that may fall foul of the minimum standards in the directive. It also creates new issues with the burden of proof. In effect, it would be for the prosecution to prove that a person charged with an offence had never been previously smuggled or had not benefited financially.

As I said in respect of the previous amendments, however, we will look at this further. If refinement of the language used is needed to ensure non-criminalisation, then I will introduce the necessary amendments in the Dáil.

Some tightening may be needed here because there is vulnerability. As I said, the impact is not simply on the person who might face prosecution but on his or her whole family unit, and that is what needs to be protected here.

Again, as my colleague articulated it very clearly, the rationale originally for having the criteria of for profit or for financial benefit was because the original legislation and directives were seeking to create a balance. This balance the Minister of State is speaking about now is tilting it but we are at risk of tilting too far, whereas that balance was already there by having that financial criterion. We have not seen a lot of prosecutions, but we are told there is a perceived likely prosecutorial difficulty in engaging on the question of financial benefit.

Amendment No. 13 is quite nuanced in that it addresses the financial benefit and the object of people smuggling. That could also be caveated to include family member actions as well. I look forward to further engagement on this.

We need to send as precise and clear a signal to prosecutors as possible because, as my colleague has said, there is a fear and a perception. We know we have had cases, which we spoke about on Committee Stage. I have spoken about Médecins sans Frontières and there have been cases of Irish persons who have faced prosecution.

I will press the amendment. If the Minister of State cannot accept it at this point, I hope he might engage with us further between now and when the Bill goes to Dáil and maybe we can find forms of words which clarify.

Amendment put and declared lost.

I move amendment No. 13:

In page 11, after line 40, to insert the following:

"Protection of smuggled persons from prosecution

11. A person who has been the object of people smuggling and derives no financial benefit from people smuggling shall not be considered to have committed an offence under any provision of this Act.".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 14:

In page 11, after line 40, to insert the following:

"Report on operation of the Act

11. The Minister shall, on an annual basis following the passing of this Act, lay a report before both Houses of the Oireachtas detailing—

(a) the estimated number of victims of human trafficking identified under this Act, the methodology used to produce the estimate and potential alternative methods of estimation which may produce a more accurate result,

(b) a summary of the outcomes for smuggled persons identified under this Act, including what proportion of smuggled persons sought or were granted asylum and sought or were granted another form of international protection in the State, and

(c) the number of persons in the previous year found guilty of an offence under this Act, and a summary of the sentences imposed under this Act.".

I second the amendment.

Amendment put and declared lost.

I move amendment No. 15:

In page 11, after line 40, to insert the following:

"Report on operation of the Act

11. The Minister shall, on an annual basis following the passing of this Act, lay a report before both Houses of the Oireachtas detailing—

(a) the number of prosecutions not pursued due to a humanitarian defence,

(b) the number of prosecutions pursued where a humanitarian defence was employed, and

(c) any impact which this Act may have had in respect of the level of engagement of humanitarian organisations in humanitarian activity in respect of smuggled persons.".

I second the amendment.

Amendment put and declared lost.

Amendments Nos. 16 and 17 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 16:

In page 11, after line 40, to insert the following:

"Report on training

11. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining—

(a) the training provided to frontline staff involved in the identification of smuggled persons,

(b) measures which may be taken to improve such training in particular in relation to the provision of supports that a smuggled person may need in order to exercise their rights under international protection, and

(c) consideration of the need for additional personnel, including independent civilian experts.".

I second the amendment.

Amendments Nos. 16 and 17 relate to training. My colleague, Senator Ruane, is the person who first highlighted this issue on Committee Stage.

A lot of the rationale for this legislation being brought forward is the perception that Ireland has been rated as tier 2, so less than best practice levels, in terms of our reports on how we are doing with identifying trafficking, and dealing with smuggling and other issues. In terms of the issues that were identified as problems, to be honest, prosecutions and successful prosecutions were a small part of . A lot of the issues that were identified as concerns in Ireland concerned the failure to identify trafficked or smuggled persons - I have focused in these amendments on smuggled persons because this is Bill on smuggling - and that there was a lack of knowledge and understanding on the part of front-line staff who were engaging with these vulnerable persons, first in identification and then in following up . Also, there is a concern about ensuring the smuggled person is given the supports he or she needs to access his or her rights, including his or her rights under international protection and under the European convention. That is the area where Ireland has been marked as falling down and that is where we have got a poorer ranking. Therefore, this is an area that needs to be improved.

In amendments No. 16 and 17, we specify the "additional personnel, including independent civilian experts" and "the potential for human rights experts from non-governmental organisations to assist in identification and support of smuggled persons". This is an issue that was discussed at great length in the past and which was happening, in fact, coming up to about 2003 and 2004. There had been a practice whereby you had independent human rights and civilian experts who were in a position to be, which we cannot expect every front-line security officer will be, experts in international protection law and due process and who had an expertise when it came to legislation on smuggling. That was a really important resource and, crucially, as the Minister of State himself spoke about the fear a smuggled person will have when he or she encounters a person of authority or the fear he or she will have of both the smuggler and, potentially, a member of the police force or authority, especially if the smuggled person comes from an authoritarian situation, having those independent personnel as someone a smuggled person can talk to and engage with on how he or she accesses his or her rights is a very good idea which tends to lead to more honest communication which, as a result, also leads to better prosecution of smugglers. That is something we had in 2003 and 2004. It was being trialled, it was happening and then it stopped happening. It is something we should revisit and I hope the Minister of State can revisit it. It would make a huge difference if, for example, as well as having the security and officials we have, there was also an independent NGO, member of civil society or independent expert at the key points of entry at Ireland's ports and airports. It would be best practice. I believe it has been brought in in New Zealand and a few other places. I am happy to engage further with the Minister of State on it.

My colleague has other points about training, so I will pass on to her.

The most basic entitlement that people deserve and which this Bill seeks to protect is to be treated with respect and dignity. This starts with the training of the people who will be the first responders to anybody who enters this country.

The Council of Europe's Group of Experts on Action against Trafficking in Human Beings, GRETA, committee recently recommended that Irish authorities ensure their front-line staff involved in the identification of victims of trafficking should be provided with regular training and guidance on best practice. By placing a provision in the Bill committing the State to reporting on the level of training provided to officers and officials dealing with smuggling and trafficking, we offer these vulnerable people the best possible chance of being dealt with in a dignified and respectful manner.

In regard to amendment No. 17, to ensure the vulnerable people this Bill seeks to protect are given the protections and rights to which they are entitled, it is crucial smuggled persons are properly identified. Currently, Ireland and Romania are the only two EU states that are placed on the tier 2 watch list of the recently published Trafficking in Persons report. The report, compiled by the United States Government to combat human trafficking, suggests with this ranking that the estimated number of victims of severe forms of trafficking or smuggling in Ireland is either very significant or is significantly increasing.

It is, therefore, essential that there is a commitment in this Bill to the establishment of a proper identification process which ties in to the rights and entitlements laid out in it. I am asking, therefore, that this amendment be accepted in order to ensure that the State is properly identifying highly vulnerable people.

I thank the Senators. I will speak to amendments Nos. 16 and 17 together because they are closely related. I acknowledged in our discussions in the House last week that there is a fine line between people smuggling and human trafficking. The Senator made some poignant points about the difficulties the most vulnerable people face when seeking safe passage for themselves and their loved ones. I said the following at the time and feel strongly that I must reiterate it now. The issues raised here are more appropriately dealt with in the context of human trafficking discussions. As a result, I cannot accept either of the amendments. In respect of the specific statistics regarding the outcome relating to smuggled persons, I mentioned on the Committee Stage that the Department of Justice publishes detailed statistics on the international protection process. We must also consider the focus of this Bill and the wider measures that are being put in place, such as those announced by the Minister of State at the Department of Justice, Deputy Hildegarde Naughton, which will further enhance Ireland's capabilities in protecting those who are victims of people smuggling or human trafficking.

As the Senator will be aware, there is a breadth of work ongoing in this area. As I have said before, the appointment of a national rapporteur, the development of the national referral mechanism and the many other initiatives that are ongoing in tandem with this legislation must be allowed to take root. The Minister of State, Deputy Hildegarde Naughton, just announced a new public awareness campaign on human trafficking. The key message this will convey is that human trafficking is a crime which is happening in Ireland, that traffickers often profit from the misery of their victims in forced employment and that the public needs to be vigilant. The #AnyoneTrafficked 2021 campaign will be rolled out on social media and in key transport hubs across the country until the end of November. It is being undertaken with the support of a number of other State agencies and non-State organisations.

I referred to aspects of the broader work being done on Second Stage and again on Committee Stage. There are many actions being implemented by the Government to address the issues faced by victims of trafficking, not just the national referral mechanism, but also the designation of the Irish Human Rights and Equality Commission as a national rapporteur and the development of a new action plan on trafficking with legislation to go alongside it. There has also been work on the development of training through NGOs targeting front-line staff and industries such as the hospitality, airline and shipping industries who may have come in contact with trafficked persons and provide dedicated accommodation for female victims of sexual exploitation. There are also improvements being made to the criminal justice system to support victims through the implementation of Supporting a Victim's Journey, the running of a new awareness-raising campaign in partnership with the International Organisation for Migration to build on the success of previous campaigns, an increase in funding for supporting victims of crime generally and increased funding dedicated specifically to supporting the victims of trafficking.

I was also able to confirm to Deputy Christopher O'Sullivan in the Dáil last night that the Minister of State at the Department of Enterprise, Trade and Employment, Deputy English, the Minister for Agriculture, Food and the Marine, Deputy McConalogue, and I have agreed to a review of the atypical working scheme for migrant fishers. The officials already met last week and will be meeting again this week. That will be another important step to ensure that human trafficking in this country is tackled, acknowledging that there may be certain rogue elements abusing the system. The scheme was urgent when it was brought in five years ago but it is now time that it was reviewed. In the circumstances, I cannot agree to the amendment.

The review the Minister of State has mentioned may be an opportunity for engagement on these issues. This is something that needs to be looked at. As my colleague outlined, we know that things are not working as they should at the moment. I look forward to engaging with the Minister of State on that review. The training component is pressing, as we know, and we need that, regardless of the review. It would be good to see that happening and to know it would be happening.

As the Minister of State mentioned, there are larger issues relating to An Garda Síochána and training right across the board. We have focused our discussion on border points but there are issues about the wider understanding of these issues within An Garda Síochána. We talked, for example, about presence in the State rather than the exit point. In general, there needs to be much more understanding of that. The Minister of State will note that we do not just talk about knowledge, training and information in our amendments, but also address the question of support. It is not enough for people to be aware of others' legal rights. It is key that the issue is framed on the basis of supporting people to access their rights. Training should not simply be about the limitations of one's power but almost as a positive duty of support.

We will be engaging on this matter. I know an ongoing process is under way but it would be good to send a signal with this Bill that addresses the question of support. It would show that we have listened to the full gamut of the expression of concern that was expressed. I hope the Minister of State might consider bringing in a provision, even it is not worded exactly as we have it, for the ancillary supports that will be put in place around addressing the issue of smuggling. It would send a positive signal if the Minister of State found a way to include that language in the Bill and in the reporting on the Bill. The Minister of State mentioned the post-enactment review. Perhaps, in parallel with that review, there could be a report on implementation and whether sufficient training has been implemented and so forth.

Amendment put and declared lost.

I move amendment No. 17:

In page 11, after line 40, to insert the following:

Report on identification of smuggled persons

11. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas setting out proposals to strengthen the identification of smuggled persons and the potential for human rights experts from non-governmental organisations to assist in identification and support of smuggled persons.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 18:

In page 11, after line 40, to insert the following:

Review of operation of Act

11. The Minister shall, within 12 months of the passing of this Act, lay a report before both Houses of the Oireachtas reviewing the operation of this Act, with such a review to include—

(a) outcomes for smuggled persons, including the number of smuggled persons identified and the number who have sought and the number who have been granted international protection,

(b) an examination and any evidence of whether the provisions of this Act have had any chilling effect on the work of humanitarian organisations,

(c) the manner in which section 9 was used in the decision not to prosecute and in court proceedings, and

(d) the impact of this Act on Ireland’s human rights obligations, including obligations under the 1951 Convention relating to the Status of Refugees and the European Convention on Human Rights, with a particular focus on the principle of non-refoulement.”.

I second the amendment.

Amendment put and declared lost.
Bill, as amended, received for final consideration.

When is it proposed to take Fifth Stage?

Is that agreed? Agreed.

Question proposed: "That the Bill do now pass."

I thank Senators for their engagement on this matter. I look forward to engaging further regarding some of those issues.

I thank the Minister of State for his engagement. I urge him to reflect further on where the balance might be. If we are going with what I regard as the risky strategy of relying on prosecutorial discretion, I suggest that we put measures in place to track how that pans out. I also recommend a review. The review we proposed had a number of caveats but there is nothing to stop the Minster of State from putting in an amendment providing for a review with those factors considered. I know there will be a post-enactment report but a review would be merited if we found in that post-enactment report that there had been unintended consequences. We talked about the metrics for what happens with regard to prosecutorial discretion, the outcomes for smuggled persons and, crucially, whether those other, ancillary issues are actually being addressed. Matters such as how we are reviewed on our human rights performance are going to be core considerations.

I thank the Minister of State for indicating that he will engage on some matters. I think we are taking something of a risk with this approach. I believe an exemption for humanitarian action would be a safer position but if the Minister of State cannot accept that, I urge him to build in a review in one year or two years' time, ideally during the lifetime of this Oireachtas and while the Minister of State is still in office, because I believe he has an understanding of these issues and cares about them. That would allow us the opportunity to ensure that we have not gone down the wrong path.

I again ask the Minister of State, in his capacity at the Council of Ministers and in the context of engaging through his colleagues, to ensure that Ireland will be a champion of humanitarian action. There are many forces arrayed against such action right now. If we are in a situation where the law and prosecutions relating to smuggling are being circumvented, can we make sure that Ireland speaks up? We may not have our Naval Service out there doing search and rescue any more, which is heartbreaking, but we can at least speak up whenever we are in a room where these matters are discussed. I hope the Minister of State will do that.

Question put and agreed to.
Sitting suspended at 2.20 p.m. and resumed at 2.45 p.m.