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SELECT COMMITTEE ON HEALTH AND CHILDREN (Select Sub-Committee on Health) debate -
Thursday, 9 Feb 2012

Criminal Justice (Female Genital Mutilation) Bill 2011: Committee Stage

I welcome the Minister for Health, Deputy James Reilly, and his officials. The meeting has been convened for the purpose of consideration of Committee Stage of the Criminal Justice (Female Genital Mutilation) Bill 2011. I also welcome the Minister of State at the Department of Foreign Affairs and Trade, Deputy Joe Costello. Apologies have been received from Deputy Naughten. Deputy Ann Phelan is attending in substitute for Deputy Robert Dowds. I propose that consideration of Committee Stage be completed not later than 1.30 p.m. Is that agreed? Agreed.

A number of interested parties are present in the Gallery. The select sub-committee has also received submissions from Mr. Michael Lynn, Amnesty International and AkiDwA.

I remind members and those present in the Gallery to switch off mobile telephones. Does the Minister wish to make some introductory remarks?

The Bill has been discussed in the Seanad and Dáil and enjoys cross-party support. It will be important in protecting people here from practices used in other countries which cause long-lasting damage to women and young girls. I urge members to expedite the passage of the legislation to confer protection as soon as possible on those who are vulnerable to the practices in question.

I will make a brief comment although I understand it may be contrary to protocol for a Minister of State to be present for proceedings of this nature. I wish to indicate my full support for the legislation. I am pleased the Minister is proceeding with the Bill. A large number of campaigners have been engaged in a long, arduous battle since 2000 to have this legislation enacted. That the Government is proceeding with the Bill so expeditiously is very important considering the number of people who experience female genital mutilation, FGM, in this country. The legislation is an important statement that this country is totally opposed to this form of abuse of the human rights of girls and young women. I wish to be fully associated with the work of the select sub-committee.

Section 1 agreed to.
SECTION 2

Amendments Nos. 1 and 4 are cognitive and may be discussed together.

I move amendment No. 1:

In page 4, subsection (2), lines 5 to 7, to delete paragraph (d).

In tabling this amendment and other amendments which I will move subsequently I reiterate that this is welcome and progressive legislation whose passage is of great importance. While I am confident the Bill will help to combat a heinous practice, one which is a brutal assault on girls and women, there is room for improvement. Having spoken to others, some of whom may be present in the Gallery, it is my view, although this may not be a universally held view, that the amendment addresses a significant deficiency in the legislation. Section 1(2)(d) is unnecessary and undermines the purpose of the Bill. This paragraph gives the impression that female genital mutilation, FGM, carried out on women aged more than 18 years is a less serious matter than female genital mutilation carried out on girls aged under 18 years. While I realise it is conditional on there being what the Bill refers to “no resultant permanent bodily harm”, the paragraph creates unnecessary ambiguity and potential confusion. In addition to bodily harm, one also has the issue of psychological damage which cannot be ignored in assessing the suitability of any of the Bill’s provisions.

It has been argued validly that paragraph (d), if left to stand, would leave women aged over 18 years open to certain forms of female genital mutilation, namely, type 4 as defined by the World Health Organization. While this type of female genital mutilation may not cause permanent bodily harm, it is widely accepted that all forms of FGM cause psychological harm, which should not be any more acceptable than bodily harm.

It has also been argued that the paragraph is required to cover cosmetic procedures. This argument has been put to me by some of those I met while preparing for the passage of the legislation. It is an argument that appears to be a little far fetched, at least to me with my arguable and limited knowledge of this area. In the highly unlikely event of such a case ever coming before the courts, it is difficult to envisage a scenario where cosmetic procedures would be accepted as FGM as defined by the Bill. If there were a real case of cosmetic surgery undertaken by an adult woman of her own volition and there is no victim, I cannot see how it could in any way come under the terms of the legislation. If cover is needed for such procedures, a much narrower provision could be inserted by the Minister on Report Stage. I encourage him to take that view and urge him to accept my amendment.

Ten years ago there would have been little, if any, knowledge or awareness of female genital mutilation in this country. For many people for whom such practices have been part of a culture in their countries of origin, there is not the same sense of the passage of rite on attaining the 18th birthday. I do not believe that certain cultures, some of which are now represented as part of our wider and extending communities, would necessarily have the same outlook as we have in terms of attaining the 18th year. The pressures that may compel a young woman of 17 years to undergo female genital mutilation would not be any less in the case of a young woman who attains the age of 18 years. There is no immediate or automatic protection afforded on the basis of attainment of the 18th birthday, or the age of majority in more recent thinking. I earnestly appeal to the Minister. That those who have lobbied, and lobbied well and heroically, for this legislation over the years would concur with me that it is not acceptable and that the Bill should take an outright position and should not say it is allowable, permissible or that it will be more accessible on the attainment of one's 18th birthday. I commend my amendment to the Minister.

With the permission of the Chairman, I will take amendments Nos. 1 and 4 together.

These amendments relate to exemption from prosecution when doing an act on a woman who is over 18 years of age and there is no resultant permanent bodily harm. It was decided to use the broad WHO definition of what constitutes female genital mutilation which includes type 4. This category subsumes all other practices not included in types 1, 2 and 3 and usually refers to pricking, piercing, incising, scraping and cauterisation. This decision was made to ensure that all forms of female genital mutilation are covered by the Bill on the basis that the terms, such as pricking, can be used to legitimise or cover up more invasive procedures.

However, it is not the intention of the Bill to criminalise certain forms of genital piercing and cosmetic surgery for aesthetic purposes. Unless the exemption is included, piercing and cosmetic surgery would be female genital mutilation because of the definition of acts of female genital mutilation adopted in the Bill. This approach was chosen following extensive consultation with the Office of the Attorney General and the Office of the Director of Public Prosecutions. The wording acknowledges that adults have freedom of choice over cosmetic or other procedures that do not violate their human rights. Following a further review of the matter recently, and additional advice sought from the Attorney General, the exemption, as currently worded, stands.

Under this exemption no offence is committed if an act of female genital mutilation is committed against a woman of 18 years or over and where no permanent bodily harm is done. However, it should be borne in mind that if a woman undergoes female genital mutilation which does not result in permanent bodily harm and she has not consented to the procedure, the act can be prosecuted as an assault, under the Non-Fatal Offences Against the Person Act 1997. This rationale also applies to the other instances of this exemption present in the Bill in section 3(2)(d ) when a girl or woman has been removed from the State for the purpose of female genital mutilation and section 4(2)(d ) when the acts are done outside the State. Therefore, I ask Deputies to reject Deputy Ó Caoláin’s amendments. I emphasise that the Attorney General has reviewed the situation since legal opinions were submitted and her position has not changed.

On the medically accepted form of cosmetic surgery, legal advice was received that it was not sufficient to look at section 2(2)(d ) in isolation. Section 2(2)(a ) provides that a person is not guilty of an offence if the person is a medical practitioner and the act is a surgical operation necessary for the protection of the woman’s mental or physical health. Similarly section 2(2)(b ) provides that acts that would technically be female genital mutilation but are required for labour or delivery are not female genital mutilation. The whole subsection (2) is part of the context that should be considered for the interpretation of paragraph (d ).

The key point is that there is protection under other law, assault legislation, in respect of this issue if somebody was forced, as Deputy Ó Caoláin said, psychologically to submit themselves to genital piercing. If this portion of the Bill was to be deleted, everybody over the age of 18 years who sought this for cosmetic reasons would be criminalised. The Attorney General's position is very clear on this issue.

Is Deputy Ó Caoláin also finished with amendment No. 4?

I am happy to deal with the two amendments together. My reference to "psychological" was in terms of coming to accept the potential damage that can be consequent on the act of FGM. The paragraph in the Bill I seek to delete, subsection (2)(d ), is quite particular, and includes the reference “no resultant permanent bodily harm”. I am making the point again that I believe there is consequent psychological damage. This does not and will not address the full extent of the pressure and compunction and compulsion that is placed on women, in terms of country of origin and culture, and may well be the reason they are in Ireland in the first place. A number of cases have been presented and argued seeking to avoid subjection to this procedure. I do not believe they are confined to young people under 18 years of age and children. I am not convinced - that is my view and we will differ on it, and so be it - that on attaining the eighteenth year we are providing the necessary protection. I do not believe a young woman of 17 years and 364 days of age is less vulnerable one day later. In terms of our traditional societal evaluation we could say yes, but in terms of the origin and culture that exists around many of those women who could be, have been or might be subjected to FGM, I do not believe there is necessarily an applicable protection. For that reason I make the argument.

I tried to follow the Minister's response. I think he referred to section 3(2)(d ) in his response and perhaps he will check his note as no such section exists. I noted the different sections. I think it was one of the first sections to which he referred in terms of other measures within the Bill. Section 3(2) only has an (a ), (b ) and (c ). Is that what is in the Minister’s note and, if so, will be accept that is a mistake? We just do not have a section 3(2)(d ).

Not to irk members by going on too long, I believe the Minister, in terms of the areas for which he is trying to make provision, could do it very well with a small additional measure of his own authorship on Report Stage and that he would accept the validity of the concerns and the arguments I am representing here which I happen to genuinely and sincerely hold. As a Dáil Deputy I have met families, mothers and their daughters who have outlined to me the real concerns and fears that are their experience. I do not believe in those cases that the attainment of 18 years is a protection.

The Deputy is absolutely right. There is no section 3(2)(d ), it is 3(2)(c ). It is a typographical error in the note for which I apologise. I think we are all on the same side, it is about protecting young women and other women from this type of practice which causes lifelong disability and sometimes death and very serious complications from the point of view of being able to have children later in life and a whole host of other issues. The argument around 17 and 18 years of age is one we struggle with all the time, not just in respect of this issue. Why is a person who was 17 years of age yesterday and 18 years of age today more wise and better able to vote in a general election? Why are they more mature in terms of being able to go into a public house? These arbitrary age issues are in the law. The law is often not forgiving in the way it is interpreted, and we have to take the best legal advice available to us. The best legal advice in the land has indicated to us that this is the route to go, having considered all of the submissions. This does not give any impression that any form of abuse is allowed, and it would be abuse if a person did not consent to having piercing done. That is covered under the law on assault, so we are caught within the jurisprudence constraints that the country operates, and the best legal advice indicates that this is the best way to go. I believe we should take that advice. I believe our current and previous Attorneys General were at one on this, and both are the finest legal minds in the country. The current Attorney General will be extremely cognisant of the difficulties this practice causes, and will be as keen as anyone in this room to stamp it out.

The point that I wanted to raise is not contained in any of the amendments. Could you please indicate to me where I might be able to raise my point? Will I have to wait for any other business?

Is it in a particular section?

No, I do not think so. Can I include it on Report Stage?

I will allow you to speak on it in section 15.

Deputy Ó Caoláin, how stands your amendment?

This is the first time that there has been a significant divergence of views on the select committee. If I were to press the amendment, is the determining number the membership of the select committee or the full committee?

The select committee.

How many are on the select committee?

I think there are ten, plus the Minister. Deputy Phelan is replacing Deputy Dowds. We have an apology from Deputy Naughten.

I am in a huge minority, but I feel very strongly about it. I may be proved wrong in time and I hope that will be the case, but I feel I would be wrong not to hold to that position. The purpose behind the arguments I am offering is to try to protect. As that is the case, and it is not a lightly chosen amendment, I wish to press it.

Amendment put.
Amendment put:
The Committee divided: Tá, 8; Níl, 1.

  • Buttimer, Jerry.
  • Conway, Ciara.
  • Fitzpatrick, Peter.
  • Healy, Seamus.
  • Keating, Derek.
  • Kelleher, Billy.
  • Phelan, Ann.
  • Reilly, James.

Níl

  • Ó Caoláin, Caoimhghín.
Amendment declared lost.
Section 2 agreed to.
Section 3 agreed to.
SECTION 4

Amendments Nos. 2, 3, 5 and 7 are related and may be discussed together.

I move amendment No. 2:

In page 5, subsection (1)(c), line 18, after “State” to insert the following:

"or has been issued with or in possession of a permit to reside within the State".

The purpose of this amendment is to ensure people from outside the EU who have a legal right to live in the State but may not be ordinarily resident in the State would come under the terms of the law.

The purpose of amendment No. 5-----

I am sorry to interrupt but are these amendments a natural grouping when they address different sections?

This is what I have been given on the groupings.

My amendment No. 3 deals with the whole issue of dual criminality. Deputy Naughten's amendments Nos. 5 and 7 are contrary positions to my amendment. They work on the basis the dual criminality issue stands while I am seeking to have it changed. The sequence suggests to me that we should be dealing with my amendment first. If amendments Nos. 5 and 7 are taken now, it will predetermine a position that will impact on amendment No. 3.

I take the Deputy's point but I will go with the advice given to me about the groupings. The Deputy will be allowed to speak on his amendment.

The purpose of amendment No. 5 is to ensure that in countries where persons cannot be prosecuted, they will face the deterrent of having their right to residency in the State withdrawn. This can be legally applied to both EU and non-EU nationals at the discretion of the Minister for Justice and Equality.

Amendment No. 7 is related to amendment No. 5 and provides for a case where persons cannot be prosecuted that at least their rights to residency could be withdrawn. It is proposed that this should apply to EU and non-EU nationals at the discretion of the Minister for Justice and Equality.

I am happy to support Deputy Naughten's amendment No. 2 but I do not support amendments Nos. 5 and 7. In the Seanad debate on the Bill, the Minister for Health stated the removal of dual criminality from female genital mutilation, FGM, legislation could be revisited if the Council of Europe convention on preventing and combating violence against women and domestic violence were ratified. If this convention were signed, there would be no dual criminality requirement. I share the concern of AkiDwA, Akina Dada wa Africa, that this legislation, as drafted, could be circumvented by FGM performed in a country in which it is not a crime, of which there are many. The appropriate way to deal with this issue is for the State to ratify the convention on FGM and the requirement for dual criminality, therefore, can be removed.

Deputy Naughten's amendment No. 5 states "where a person is not guilty of an offence" but goes on to prescribe a penalty. Is that even constitutional? Does it have legs to suggest that while we may be offended by the action we can still apply a penalty such as the withdrawal of residency rights in the State even though no offence has occurred in law? This amendment is fundamentally flawed in its approach as a consequence. It presupposes the retention of section 4(1)(c) which I seek to delete. Section 4(1)(c) should simply state “by a person who is a citizen of Ireland or is ordinarily resident in the State.” The provision “and would constitute an offence in the place in which it is done” is not required. The world, as sadly as we meet, is full of options for people to have this procedure done where it is not an offence. FGM is, however, very offensive for those of us for whom Ireland is home, which not only includes our traditional community but our new and welcome brothers and sisters from other parts of the world who wish to have a safe and fruitful future here. It should be quite clear that any citizen of Ireland or person who is ordinarily resident in Ireland should not be involved in this act, end of story.

I strongly urge the signing of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. That should be done as a matter of urgency. There is no excuse in the wide earthly world for that not to be done, and immediately if possible. I accordingly take the view I have explained with regard to Deputy Naughten's amendment No. 5, of which No. 7 is a further reflection. I hope I have explained sufficiently - I know it is a little complex - the reasons I believe amendment No. 3 should be supported. I will support No. 2, in Deputy Naughten's name, but I strongly oppose Nos. 5 and 7 for the reasons I have outlined.

I thank the Deputies present for their contributions.

Amendment No. 2 relates to the definition of who might be prosecuted for carrying out or attempting to carry out an act of female genital mutilation in a place other than this State. The current text of section 4(1)(c) is a standard format in Irish criminal law for applying extraterritorial jurisdiction to specific offences, and is used in other statutes such as section 8(1)(c) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. If the intention of Deputy Naughten is to encompass any non-Irish national who currently has a valid permission to reside in this State, that is already provided for in the current wording, and the proposed text is unnecessary. I do not, therefore, propose to accept this amendment.

The proposal in amendment No. 3 is to remove the requirement for dual criminality from this Bill. As the Deputies might be aware from previous Oireachtas debates on this Bill, this requirement has been included to conform to constitutional and international law requirements. It was inserted into the Bill on the advice of the Office of the Attorney General. This issue has been considered in some detail by my officials and by the Office of the Attorney General, and following a further review and the seeking of additional advice from the Attorney General, the current provision of dual criminality stands.

Only in exceptional cases are extraterritorial offences provided for in criminal law without a dual criminality requirement. Under international law, only offences jus cogens against the norms of the world, such as piracy, war crimes and terrorist acts, carry universal jurisdiction. At present, FGM, when carried out privately, is not an international crime, but general principles of international law are developing all the time, and therefore the view that FGM is not an international crime is open to change depending on developments in the area. In addition, Cosc, the national office for the prevention of domestic, sexual and gender-based violence, is currently examining the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. Under the terms of this convention, the practice of FGM is condemned, and it provides that there should not be a dual criminality requirement. The removal of dual criminality from FGM legislation could be revisited if and when Ireland ratifies the convention, as pointed out by Deputy Ó Caoláin.

It is important to point out that people who are Irish citizens or residents will already be criminalised under section 3 of this Bill for removing a girl from the State for the purpose of having FGM carried out, which mitigates the rationale for the dual criminality clause. I do not, therefore, propose to accept this amendment.

Amendments Nos. 5 and 7 are proposed by Deputy Naughten. Amendment No. 5 would require the Minister for Justice and Equality to be informed if a person is not guilty of an offence of FGM because that offence was committed outside the State in a jurisdiction in which FGM is not criminally prohibited and, under paragraph (b), would require the Minister to remove all residency permissions from any such person who is not an Irish citizen immediately upon receiving this information. Paragraph (a) of the Deputy’s amendment does not specify who is to inform the Minister that a person is not guilty or, more importantly, who is to make that judgment about the person. The term “not guilty” would imply that the person in question has been charged, brought to trial and found not guilty by a court on the basis that extra-territorial jurisdiction does not apply. It would be extremely problematic to proceed with a withdrawal of residence permission based on a finding of innocence by a court.

Paragraph (b) is problematic in its own right. The withdrawal of residency rights from persons who are not citizens would apply to both EU and non-EEA nationals. The removal of free movement rights from EU citizens is a very serious matter and would be extremely difficult, if not impossible, on the basis of an action that is not an offence or a finding of innocence. Furthermore, such an action would have to be subject to due process, which is not provided for in the proposed amendment. The Minister for Justice and Equality does not remove residency rights from Irish non-nationals. When it is judged that a foreign national should be removed from the State, he or she is subject to the process provided for in section 3 of the Immigration Act 1999. This is currently the only manner in which foreign nationals can be forcibly removed from the State. In the meantime, it should be noted that section 3(2)(b) of the Immigration Act 1999 permits the Minister to make a deportation order in respect of a person whose deportation has been recommended by a court in the State, before which the person has been indicted for or charged with any crime or offence. The same observations apply to amendment No. 7. Therefore, I ask the Deputies not to support these amendments.

I welcome the Minister's statement that Cosc intends to examine the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, because there is an issue with regard to dual criminality. I believe that is a flaw in the Bill, but it will be rectified if we come to sign the convention in due course. I welcome the Minister's comments and look forward to hearing the outcome of Cosc's deliberations.

I welcome the Minister's analysis of amendment No. 5. At least we concur on that. That is progress. I will not deal further with Nos. 5 or 7 because we have put those to bed. I still take the view that Deputy Naughten deserved a better answer on No. 2, because I thought it merited support.

With regard to No. 3, I join with the urgings of Deputy Conway a moment ago that we sign the European Council convention. That is absolutely crucial. It is unforgivable that we are in a situation, all this time later, in which this is yet to be done. There are things that any of us, over the course of our short time in this institution, would like to have done, and I ask that the Minister make this a priority and play his part in achieving it at the earliest opportunity.

On the issue of dual criminality, this Bill will allow an Irish citizen or someone living in this jurisdiction to leave these shores and carry out what we are now going to categorise as a criminal act, without accountability to our body of legislation or to the courts here, by virtue of the fact that the country in which he or she chooses to carry out this criminal act does not also hold this view. That is a major flaw. The act must be a crime in both the state of residence and the state in which it is carried out. That is clearly an out for many who will seize the opportunity to do this. We are trying to protect a significant number of people who are resident in this State now or will be in the future, but I do not think we are doing that. This Bill is flawed as long as we allow an escape hatch for people who are responsible for carrying out this barbarous act on women. If they choose to go to a country where FGM is not an illegal act, they will thereby escape accountability here before our courts. It is wrong, in my view. It is a fundamental flaw.

Let us get rid of the dual criminality provision. If ever there was a reason to proceed with something, this is it. It is literally a matter of removing from section 4(1)(c) of the Bill the last few words, “and would constitute an offence in the place in which it is done.” Take it out, and the Minister will have done a mighty act in protecting that cohort of women - in the main, young women - who may be subjected to this outrageous procedure. That is the choice and the reality we face. If the Minister holds to his position it only remains for me to close by appealing to him again not to allow any review or assessment to take undue time to come to the decision to sign the convention on preventing and combating violence against women and domestic violence. It must be done urgently.

Other people have raised a concern on section 4(1)(c). Section 4(2)(a) could have a diluting effect on the intention of the legislation. A person is not guilty of an offence under section 4(1) if the act concerned is a surgical operation performed by a person who is duly qualified to perform the surgical operation under the law of the place where the act is done. First, one must establish what qualifications are required. However, in some parts of the world where these appalling acts are carried out there is no law as such. These are almost lawless states in some cases.

Another phrase of major concern is "necessary for the protection of her physical or mental health". Who will define that? Who defines what is necessary for the protection of her mental health? We may hold a view here but these acts are carried out on girls in other states where there may not be strong, robust legislation. Some states do not have this. Who defines whether it is in the interest of her physical or mental health? Who defines these things?

You can get that on Report Stage if you wish, Deputy.

It is the substance of section 4, to which I am speaking.

The exemption referring to the protection of mental health refers to the possible need for surgery in respect of gender reassignment arising from gender identity disorder, intersex conditions or congenital malformations. There is evidence from several studies that these groups experience violence and discrimination with a high proportion of those involved having contemplated suicide. Intersex people are born with a reproductive or sexual anatomy that does not fit the typical definition of "male" or "female". It is believed this condition affects one in 1,500 births. Individuals affected by this condition often experience distress in much the same way as those with gender identity disorder, GID.

An interdepartmental advisory group was set up by the Minister for Social Protection to advise on the legislation required to enable the acquired gender identity of transsexual persons to be legally recognised by the State. As part of the recommendations, the group stipulated that the basic qualification criterion for gender recognition should be a form of diagnosis of GID by one or more qualified mental health professionals plus a statement that the person is not suffering from any other mental health disorder. The Department of Social Protection is currently working on developing draft heads of a Bill which it intends to bring to Government in quarter 1, 2012.

A long list of countries have legislated against female genital mutilation, FGM, including: Benin, Burkino Faso, Central African Republic, Chad, Côte d'Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Ghana, Guinea, Kenya, Mauritania, Niger, Nigeria, Senegal, South Africa and more besides. The bottom line is that until we sign up to this convention, the Attorney General's advice stands. Therefore, I am not prepared to accept the amendment. I have heard what Deputy Kelleher has said in respect of section 4(2)(a), which states: “the act concerned is a surgical operation performed, by a person who is duly qualified to perform surgical operations under the law of the place where the act is done, or has been professionally trained to perform surgical operations, on the girl or woman concerned, which is necessary for the protection of her physical or mental health”. However, the second half of the paragraph qualifies the first half, where Deputy Kelleher’s legitimate concerns lie about places where there is no law, little law and where the qualifications are questionable and such procedures are carried out. However, the phrase “which is necessary for the protection of her physical or mental health” is clear.

Who determines the girl's mental health? One could argue that in a country where it is a common custom that by not having female genital mutilation she could be put under considerable pressure within her community. In such a case they could argue that her mental health is under threat because she did not have female genital mutilation. Who defines the mental health status of such a girl? They could possible argue that they are proud of their customs, that it must take place and otherwise the girl could be put under considerable duress. They could argue that by not having it, there could be a psychological impact on her within her community.

Section 4(3) precludes the possibility of invoking reasons of custom or ritual or the consent of the girl or woman or her parents or guardian in any defence to proceedings for the commission of the general offence in section 4(1). That is covered.

Amendment put and declared lost.

I move amendment No. 3:

In page 5, subsection (1)(c), lines 18 and 19, to delete all words from and including “, and” in line 18 down to and including “done” in line 19.

I appeal for Members' support.

Amendment put and declared lost.

I move amendment No. 4:

In page 5, subsection (2), lines 36 to 38, to delete paragraph (d).

Amendment put and declared lost.

I move amendment No. 5:

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

"(6) (a) Where a person is not guilty of an offence under subsection (1) by virtue of the fact that it would not constitute an offence in the place in which it was done, then the Minister for Justice shall be informed of this fact.

(b) On receiving such information under subsection (1) the Minister for Justice shall, where the person is not a citizen of Ireland, immediately withdraw all residency rights to remain within the State.”.

Amendment put and declared lost.
Section 4 agreed to.
Section 5 agreed to.
NEW SECTION

I move amendment No. 6:

In page 6, before section 6, to insert the following new section:

"6.—A person shall be guilty of an offence if the person aids, abets or incites a girl or woman to do to herself an act of female genital mutilation.".

This matter is not addressed in the Bill as presented by the Minister. I accept that it may be difficult to prove but there is a requirement on us to legislate - this is our primary responsibility - and to send out the clearest, strongest possible message by doing so. We should include not only addressing those who may be responsible for the act but those who aid, abet or incite must also have a case to answer. I strongly recommend that we adopt the amendment. I hope the Minister will accede to it yet. We should remember from the outset what is behind this culturally. It is in the whole area of the dis-empowerment of women. Every effort must be made to properly support the empowerment of women. They should have the opportunity to properly resist and to have the strength to reject the efforts of those who would seek to incite, aid or abet such an act against themselves or another woman. I commend the amendment to Members and I hope the Minister will accede to it.

I reassure Deputy Ó Caoláin. This amendment relates to the exemption from prosecution in the Bill for a girl or woman who self-mutilates. I am pleased to clarify that it is already the case that a person who aids and abets such a girl or woman to carry out female genital mutilation on herself can be tried for an offence under the general criminal law. This is because the exemption would only apply to the girl or woman and not would not apply to create an exception for any person who aids, abets or incites her do the act on herself. It is covered, and therefore I ask Deputies to reject the amendment.

We can keep going back for the crutch of other legislation such as the Offences Against the Person Act or whatever legislation the Minister will cite. The fact of the matter is that we are talking about female genital mutilation. We are putting on the Statute Book a piece of legislation that will likely stay in place for many years before it will be revisited. There is a responsibility on us to give the strongest possible signal of our total intolerance of what is involved. The scenario I suggested does not go beyond the bounds of possibility, in terms of the amendment. I am again making the case that we should provide for this as a potential scenario that could occur and make sure we have the widest possible protections for all women who may face this pressure.

This section criminalises the act of doing female genital mutilation. It also provides for the offence of attempting to do an act of female genital mutilation. The offences of aiding, abetting, counselling or procuring the commission of female genital mutilation are already provided for in the general criminal law Acts on the grounds that a person is liable to be tried and punished where he or she aids, abets, counsels or procures the commission of an indictable offence. Section 5 of the Bill provides that doing or attempting to do female genital mutilation is an indictable offence. For the peace of mind of those present, it is already covered under the following Acts - the Criminal Law Act 1997; the Criminal Justice Act 2000; and the Criminal Justice (Amendment) Act 2009. It is extremely well covered in the broadest possible sense and the amendment is not necessary.

I will conclude with my last observation. The particular situation I described, namely the pressure that could be placed on a woman to perform this act on herself, is what we are looking at. It is a particular situation for which there is more than anecdotal evidence of its occurrence, and therefore it should be provided for and addressed. The idea is abhorrent to all of us but we have to realise that this can, has and probably will continue to happen. We should be as specific as we possibly can in dealing with this legislation. This is the best chance that many of us here will have to make an impact because the legislation will not be dealt with again during the term of this Dáil.

I wish to comment on the concerns raised by Deputy Ó Caoláin. I want to reassure him that what we must focus on in regard to the Bill is that it has a very practical purpose. It is symbolic in terms of deterrence. It will assist communities living in Ireland who are fighting against the practice and challenges in their communities. Other legislation, including this Bill, refers to female genital mutilation which is very symbolic. The chances of it coming before us again are slim to none but we need to grasp this opportunity to ensure that it passes. The Minister has outlined that the issues the Deputy raised are covered under other legislation. The Bill will have a very practical purpose in assisting people within their communities to use this as a deterrent and relieve some of the pressure to which the Deputy referred.

I have to emphasise as strongly as possible that the exemption will only apply to the girl and woman herself and nobody else. It will not apply to create an exception for any person who aids, abets, incites, coerces or otherwise might try to influence a young girl or woman to perform female genital mutilation. There is no missed opportunity. It is crystal clear in three different statutes, which makes the amendment unnecessary. Therefore, I ask that it be rejected.

I have a brief comment. It is not just symbolic. We have to be as precise as legislation often requires. It is our responsibility as legislators to go through the Bill with an applied mind to the best of our respective abilities. Where I see a deficiency I will seek, one way or another, to improve it for all the right reasons. The amendments I have tabled will have echoes in the future because we did not take them on board. I have no doubt it will prove to be the case, sadly, in time. I have to demur to the fact that the Minister is pressing his view and my amendment will not get legs.

Amendment put and declared lost.
Section 6 agreed to.
Amendment No. 7 not moved.
Sections 7 and 8 agreed to.
SECTION 9

I move amendment No. 8:

In page 8, subsection (7), line 11, after "permanent" to insert "or electronic".

I view this as a technical amendment and thought it was acceptable. I will happily accommodate the Deputy. I expect the Minister to accept the amendment, which would be a change.

The amendment relates to e-mails. It is a technical amendment.

The amendment sets out to insert an explicit reference to "electronic records" in regard to the definition of "written publication" contained in this section aiming to protect the anonymity of the girl or a woman in question. However, I am pleased to inform the Deputy that Part 1 of the Schedule arising from section 21(1) of the Interpretation Act 2005 states that writing includes: "[P]rinting, typewriting, lithography, photography and other modes of representing or reproducing words in visible form and any information in a non-legible form whether stored electronically or otherwise which is capable by any means of being reproduced in a legible form." Therefore, the amendment is unnecessary as it is already covered by that Act and I urge Deputies to reject it.

I do not think anybody is on a different page or an electronic record. When things are already covered in law there is very little point in restating them in law time and again. We have to take advice from those who are used to drafting bills, including the Attorney General and others. I accept the bona fides behind amendments but when they are unnecessary we should not make the law more cumbersome than it already is. We should take the best advice available to us. We all share the common goal of protecting women and children, in particular, against this heinous act.

I would like to comment on record keeping and the collection of data. In my ignorance, I did not see it in any of the amendments. It is an issue. Like anything we try to do in society, everything has to be based on good record keeping and the collection of data. I refer to maternity hospitals where women would present having experienced female genital mutilation. I suggest that as standard practice throughout the country maternity hospitals should keep a record of cases of patients who have had this procedure. This would give us good accurate data to inform any other legislation in the future or to amend any existing legislation.

I have spoken to the officials. They think this is a good idea and have set in train the measures to do this. It is very important that record keeping is as accurate as possible in this area because it will inform our thinking.

I thank the Deputy for her contribution as this is an important consideration. Maternity hospitals have already begun that process and will collect information on that very particular area. I agree with the Deputy. Information-gathering and accurate data is critical to planning for policy and for the provision of care to citizens.

Amendment put and declared lost.
Section 9 agreed to.
Sections 10 to 13, inclusive, agreed to.
SECTION 14

I move amendment No. 9:

In page 11, to delete lines 9 to 12 and substitute the following:

"the following paragraph after paragraph 37 (inserted by section 13 of the Biological Weapons Act 2011):

"Offences relating to female genital mutilation

38. An offence under section 2, 3 or 4 of the Criminal Justice”.

Section 14 amends the Schedule to the Bail Act 1997. The Schedule lists the offences defined as serious offences and section 2 of the Bail Act provides for the circumstances in which bail may be refused for such offences. As a result of this amendment, the offences in this Bill that relate to sections 2, 3, and 4, will be added to the Schedule of the Bail Act. This is a technical amendment.

I will accept the Minister's amendment. I am showing no ill will after all he has done to me here today and to my hard work. It is, as he suggests, a technical amendment.

Amendment agreed to.
Section 14, as amended, agreed to.
NEW SECTION

I move amendment No. 10:

In page 11, before section 15, to insert the following new section:

"15.—The Minister shall, not later than 5 years after the establishment day, carry out a review of the operation of this Act and shall make a report to each House of the Oireachtas of his or her findings and conclusions resulting from the review.".

I refer to my earlier points. This is very new terrain for us as legislators. We have debated the areas in which I looked for change. However, apart from what we can see now, situations may present in the future which we could not even envisage. The Mental Health Act 2001 has such a provision for a review. Given the complexity of this issue, the fact that even one of the elements we have accepted is a flaw in the legislation is contingent on the signing of the convention to achieve its removal, it is reasonable and fair that a review take place for one reason only which is that if it is required, we can improve the legislation in light of whatever new knowledge will present. I hope the Minister will accept the good sense of that amendment and I commend it to the committee.

Amendment No. 10 proposed by Deputy Ó Caoláin sets out to establish an automatic review process for the Bill, five years from its enactment. While the Bill does not make provision for a formal review within a specific timeframe, I assure the Deputies that the provisions contained therein will be subject to ongoing monitoring. Should any difficulties come to light, steps will be taken to address them in the most appropriate way. I give an undertaking that when we sign the convention I will revert to this committee to address the issue and the Bill. I urge the Deputies not to support this amendment as it is not a general practice in law to provide for an automatic review of situations and in some ways this can be counter-productive because it would mean that nothing can happen until a review five years hence and I do not want that impression to go out from here. As soon as the situation changes with regard to the convention, I will come back to this committee and to the House and correct the situation as speedily as possible. I urge Deputies not to support this amendment.

I cited the precedent of the Mental Health Act 2001. It is an eminently sensible provision to make. If the authorship of the amendment is the problem, perhaps the Minister might like to table his own amendment on Report Stage. I happen to believe it is an important requirement and while the Minister can make commitments here, in five years' time, he might not be the Minister. I think he might agree with me it would be nice to ensure-----

I might even agree.

-----that whomever would be the Minister would indeed be required to carry it out. The Minister can say it does not apply in most legislation and this is true. We are more conversant, more exposed and more aware of much that is involved but this is very new ground for each and every one of us here and we are still learning about this whole area and much has yet to reveal itself and may do over time. It is eminently sensible to make that provision. I recommend the amendment. If the Minister would like to make a suitable adjustment on Report Stage, I will be very happy to offer my support for such.

I reassure the Deputy that the authorship of this amendment is absolutely no issue. I would take an amendment if I thought it appropriate and if it fits with the advice given to me by the Attorney General and by others, such as the Minister for Justice and Equality.

In this situation, I do not wish to give the impression that we will not implement a provision for five years; I will address the issue as soon as it is appropriate to do so.

I wish to make just one small point. It is not later than five years and this means that it could be in one month's time if something else had presented. I acknowledge the Minister has made his position clear and he has the weight to carry the day.

Amendment put and declared lost.
Section 15 agreed to.
NEW SECTION

I move amendment No. 11:

In page 11, before section 16, to insert the following new section:

16.—(1) This Act may be cited as the Criminal Justice (Female Genital Mutilation) Act 2012.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular

purpose or provision and different days may be so appointed for different purposes or provisions.".

This technical amendment was recommended by Parliamentary Counsel. Section 16(2), as inserted by the amendment, makes specific provision for the commencement of the Bill. These provisions are desirable in order to clarify that the Act is not retrospective and to ensure no one is charged under it until it is published in both official languages.

Amendment put and declared carried.
Section 16 deleted.
TITLE
Question proposed: "That the Title be the Title to the Bill."

I strongly welcome the passage of this Bill through the committee. It sends a clear signal about attitudes to women in our society. Specifically, it sends a message to perpetrators of female genital mutilation or any type of violence against women that such behaviour will not be tolerated. It is also a flag of hope to women who are members of cultures, traditions or religions in which they are not encouraged to assert themselves, a testament that this society respects their bodily integrity and is willing to stand up for them. The inclusion of these provisions in the Statute Book is a very important stepping stone as we become a more liberal and pluralist society. While respecting all religious and cultural practices, we must equally ensure that where we see inequalities or abuses, we stand up for the individuals concerned, in this case, women, and that we do not allow such practices to continue. The codification of female genital mutilation as a criminal offence is a very positive legislative development for our society.

I thank the Chairman and committee members for their co-operation and support for this Bill. It is very timely that Committee Stage should take place this week, with last Monday being the ninth international day of zero tolerance of female genital mutilation. We are now a step closer to Ireland joining the long list of nations that have explicitly criminalised this abhorrent practice. I thank everyone present for their contributions. We are all on the same page in this matter. While there may be slight differences in interpretation, I am greatly pleased at the support for this provision across the House. We are united in our abhorrence of this practice and our unwillingness to tolerate it in our society.

After the sword play in regard to the different interpretations and arguments, it is appropriate to follow the Minister's lead by putting on the record that I, as an Opposition spokesperson on health, very much welcome the progress of this legislation on to its final passage through the Oireachtas. I wish it well in its stated objective of protecting vulnerable women who are now an integral part of our society. I acknowledge the shared good intent of all Deputies in regard to this legislation. The legislative process requires detailed scrutiny and the Minister himself, in his previous role as Opposition spokesman, has practised exactly the same careful consideration. I am sure he would expect nothing less from me.

I join colleagues in welcoming the progress of this legislation towards the inclusion of female genital mutilation in the Statute Book as a criminal offence. There is a battle ahead in terms of changing attitudes. Unfortunately, legislation on its own will not eradicate the practice completely. I commend the work carried out by Friends of Londiani in developing the female genital mutilation abandonment programme, which seeks to find an alternative rite of passage for girls. I also commend Mairéad Cullen on her superb documentary on alternative rites of passage, which will be aired as part of "The Curious Ear" programme this Saturday on RTE Radio 1. I am sure we will all be tuned into it.

I thank my colleague, Senator Ivana Bacik, who has been very forthright in moving this legislation through the Houses. She has pointed out the importance of its passage for medical professionals. Dr. Louise Kenny in Cork University Maternity Hospital has spoken very powerfully about her experience of working in the United Kingdom, where mothers sometimes requested re-infibulation after childbirth. Fortunately, because the legislation was in place in Britain, she was able to inform these patients that it could not be done. It is vital for doctors working in Ireland that legislation is in place to prohibit the barbaric practice of re-infibulation. I am not sure whether a woman would choose to undergo that procedure, but she may come under significant pressure to do so. The legislation will soon be in place to protect doctors by allowing them to refuse to perform the procedure.

I too welcome the passage of the Bill through Committee Stage. This debate has been timely in a week when stories of the exploitation and mutilation of women in Ireland have sent shockwaves through our society. I could not help but think, as I listened to the programme in question, of the double standards that we as a society often practise. We have an opportunity and a responsibility as a committee to examine other ways in which women in Ireland - whether they are of Irish or international origin - are disrespected and mutilated. The late night political programme I like to watch on TV3 is sometimes preceded by advertisements encouraging women to mutilate themselves. Other advertisements encourage disrespect for women with their touting of the services of so-called escort agencies. Those services amount to prostitution and it is-----

I will allow the Deputy to raise that issue next Thursday.

This committee should take the opportunity to examine how we can further legislate against the mutilation and degradation of women.

I commend the Minister and everyone involved in drafting the Bill. A great deal has been achieved. I echo what previous speakers stated and say, "Well done, Minister."

I wish to address some of the issues raised, particularly those to which Deputy Ciara Conway referred. The HSE is awaiting enactment of the Bill in order to proceed with the printing of information leaflets on female genital mutilation. It is planned that the prevention of female genital mutilation and the care of women who have undergone the procedure will be included, as a key result area, in the HSE's service plan for next year. This will allow for the development of a key performance indicator in subsequent years. This is an important point. Moreover, the HSE has taken significant steps to raise awareness and train health and social care professionals by progressing the health-related objectives of the national action plan against female genital mutilation in the past couple of years.

One of the underlying principles which guides our work in the Department is making the right thing the easy thing to do. I have used that expression in discussing lifestyle issues, smoking and obesity. Deputy Ciara Conway referred to doctors who might come under pressure. In this matter we want to make the right thing the easy thing for them to do. They must also be aware that they should do the right thing. Like the Deputy, I acknowledge the tremendous work done by Senator Ivana Bacik in bringing this matter to the notice of the Oireachtas in the first instance and for helping to progress it to this point.

I thank the Minister and his officials for attending. I also thank those in the Visitors Gallery who have been campaigning and advocating on this issue for a long period.

Before the Minister leaves, I reiterate the point I made earlier, namely, that 29 February is International Rare Diseases Day. Given that 29 February is a rare date on the calendar, it was the natural choice in this matter. As part of the lead-in to International Rare Diseases Day I am hosting a visit to the Houses by representatives of Rett Syndrome Ireland on Tuesday next at midday. I invite Deputies and Senators to come along and meet the representatives at that time. I hope others will take the opportunity to highlight rare diseases in Ireland in the remaining weeks of the month.

Question put and agreed to.
Bill reported with amendments.
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