Criminal Justice (Smuggling of Persons) Bill 2021 [Seanad]: Committee Stage (Resumed)

NEW SECTIONS
Debate resumed on amendment No. 1:
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.".
- (Deputy Catherine Connolly)

Deputy Connolly was in possession on amendment No.1. To remind Members, amendments Nos. 1 to 3, inclusive, are related and are being discussed together. Amendments Nos. 2 and 3 are logical alternatives to amendment No. 1.

When we started this debate last week, reference was made to 39 Vietnamese men, women and children who died horrifically in trucks in Essex two years ago. Reference was made, going back further, to the tragedy in Wexford. On the night of last week's debate, the Minister of State delicately told us about the tragedy unfolding in the English Channel. I was somewhat flummoxed by that and I was also rushing, so I am glad to have a chance to come back to the debate tonight.

I referred to figures from the migrant project run by the International Organization for Migration on the night of last week's debate, which informed us that migrant deaths on maritime routes to Europe have more than doubled in the first six months of 2021 compared with the same period in 2020. A total of 1,354 migrants have died thus far in 2021 while crossing the Mediterranean Sea. In addition to that, 27 people died tragically in the English Channel last week. We did not have many facts on the night in question, but since then some facts have emerged. Some 27 people, including a pregnant woman, a mother and her three children - two daughters aged 22 and seven, and a son aged 16 - to put some human face on this, died. The mother was 45 years old. An article published in The Guardian stated:

Precisely what befell the group in the dinghy is unclear. But relatives who were in contact with their loved ones [I am coming specifically to the amendment now] by mobile phone in their last minutes paint a terrible picture. The craft began taking on water. It may have been struck by a larger vessel or its wake, or it could simply have started deflating. Those on board would have started bailing desperately. [It appears that] Someone in the dinghy tried to alert the French authorities and then the UK coast guard.

At this point, according to relatives, the boat was in English waters. They desperately needed help, but none came. It was 2 a.m. or 3 a.m. the next morning when fishermen discovered the bodies in the water. It is in that context that I am pushing the amendment tonight to make an exemption for humanitarian organisations helping people who are in this or a similar position. We know people take these risks because they have no choice. I hate repeating it but it was just the nature of what happened that night.

I have pointed out that the regulatory impact analysis of this Bill has not been published. It went to a justice committee for consideration of the general heads and there was no detailed analysis of this Bill. It is not appropriate that we are doing it at this late stage. I take it from the Minister of State's comments in last week's debate that he will not accept the amendment, and I will press it to a vote, but I do not think this is a way to do that given the whole background and lead-in to this Bill. It arises, as the Minister of State knows, out of a facilitation package from an EU directive and EU decision, along with a UN protocol. More than 21 years have passed since the protocol was signed and we still have not ratified it, although I understand with this Bill it will be ratified. I cannot understand what the delay for this was. The UN protocol was adopted by the UN General Assembly in 2000. It was entered into force on 28 January 2004. It was the first global instrument to contain an agreed definition of smuggling of migrants and it sought to address the growing problem of organised criminal groups that smuggle migrants primarily for profit and so on.

I have no difficulty with the substance of the Bill, which seeks to extend the penal provisions in order to stop smuggling, and its other aspects regarding extraterritorial jurisdiction power and vehicles. My biggest difficulty with this Bill is that the issues raised by the Irish Human Rights and Equality Commission have not been taken on board, except in the most minimalist way. I welcome the provision to protect the person who is smuggled from being prosecuted. Other than that, all the recommendations from the Irish Human Rights and Equality Commission have been ignored. The Minister of State told us there was a practical need for the change, as well as for our obligations under international law. In addition, it will allow us to continue to access information under the Schengen Agreement, which Ireland is not part of in terms of area but we are in terms of information and various aspects of it. That has to be completed. Therefore, the Government is under pressure to pass the Bill, but that is not the way to deal with legislation of this nature given the challenge we face of people drowning in the Mediterranean Sea and the English Channel. I do not want to dwell on that because this has been going on for so long. I have said publicly that I could not swim in the Mediterranean Sea, but that is just me personally regarding this issue. The question is what we as a Government have done to pass legislation in order to comply with our obligations and to show leadership.

The Irish Human Rights and Equality Commission provided 18 recommendations. One recommendation of particular relevance to this debate is that a person who acts for humanitarian reasons would be an exemption under this Bill. That has not happened. It has been included as a defence and the burden of proof of evidence is now on the person who acts for humanitarian purposes and he or she will have to prove that. On the one hand, the Minister of State has said in his contribution that there is no penalty regarding people who are bona fide and act in a humanitarian manner, but on the other hand, to be charged with an offence under this legislation, which this Bill allows for, is a penalty in itself for people struggling on the ground to help other people who are struggling. I will be pressing this amendment.

I welcome the opportunity to return to this issue. We were stuck for time on the last occasion. To precis the issue as I see it, maybe the Minister of State will just focus on the net issue, because there are very few people if any, probably no Members in this House, who oppose the principles of this Bill. To ensure that in the context of the dreadful, vile and awful trade with consequences, as described as Deputy Connolly, on thousands of individuals, and those smugglers of human beings who profit from their misery and who are absolutely reckless in relation to the safety of the humans they put in inflatables designed for swimming pools which they put out in waters like the English Channel and the Mediterranean Sea, we need to have firm laws. The existing Act of 2000 that we hoped would deal with this trafficking is not fit for purpose, because there are no prosecutions. There have been two prosecutions, as I understand it, in the last 20 years under this legislation. The net issue presented to us by the Minister of State is that the reason there is no prospect of prosecuting those traffickers is that under the Act of 2000 one has to prove financial benefit to the trafficker. Since that financial benefit is normally accrued in another jurisdiction, it is clear that is a virtually impossible hurdle to prove, so the traffickers are getting away.

We want to close that loophole. That is clear. However, at the same time, we want to close it in a way that means that bona fide humanitarian actors are not captured by the Bill's provisions. I refer to people who, from altruistic motives, involve themselves in protecting vulnerable people to the best of their ability. The Minister of State's solution to that dichotomy lies in section 9 of the Bill, as produced. This provides for the humanitarian assistance defence. It provides that it shall be a defence for an accused person to prove, on the balance of probabilities, that the conduct was engaged in "for the purpose of providing humanitarian assistance, otherwise than for the purpose of obtaining, directly or indirectly, a financial or material benefit." The net issue I want to get to is whether that is a sufficient defence to protect bona fide humanitarian actors from the chilling effect of a new law that may dissuade them from, or put them in peril for, acting in a humanitarian fashion to protect vulnerable people who are trying to enter this State, or any other EU state for that matter.

On the last occasion, I noted that the amendment proposed by Deputy Connolly comes in two parts, the proposed sections 9(a) and 9(b). I do not really see any difficulty in the first part being fully embraced by the Minister of State. The first part reads:

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 ...

It seems to me that this particular section of the amendment before the House simply excludes from the threat of prosecution anybody who is part of a bona fide recognised international humanitarian organisation. Why that could not be accepted is not clear to me because I do not believe the Minister of State intends that such people should be captured by the Bill.

I want to tease out the second part of the amendment with the Minister. It reads:

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

I am interested in Deputy Connolly's view on this but, on the face of it, this seems to me to simply revert matters to the status quo under the 2000 Act. It would again fall on the State to prove that the actor was trying to benefit materially from the action. We, or at least some of us, have accepted that this is a virtually impossible task because such transactions or payments happen outside of our jurisdiction and in circumstances that are very difficult to prove.

The spirit of the amendment before us is to ensure that we have robust laws that will be effective, and not simply pretend to be effective as we have seen with the 2000 Act, in prosecuting and bringing to justice vile traffickers who profit from human misery while, at the same time, ensuring that genuine humanitarian actors and organisations are not captured by these provisions. I am interested in hearing from the Minister of State as to how he can assure the House that this objective, which I believe to be shared on all sides of the House, will be achieved through the unamended Bill and why the amendment proposed by Deputy Connolly cannot be accepted, at least in part.

I am glad we have had the opportunity to come back to this. It was quite rushed the last night. We were somewhat under pressure. The events that were happening the very night we were here debating the Bill brought into very sharp focus what all of this is about and the issues involved. All of us are of common mind in our determination to find a way to ensure that the people who engage in this kind of people smuggling are held to account and punished for the heinous crime they set out to commit.

We are also aware that the situation in the English Channel has been ongoing for many years. We have seen the camp at Calais, the so-called "Jungle", and all of that. I have spoken to people who acted in a humanitarian way there and who spoke to the people living in this camp. They put the question to them very firmly, why was there such a rush to get across the English Channel now that they were in Europe and why were they putting themselves in such danger? For most of them, it was because of family reasons. They had family members already living in Britain and they wanted to go across to them. Language was also a big issue. Many of them were from North Africa and perhaps had some difficulty with France and the French language because of old colonial history. As we know, English is the international language of businesses and is learned by people all over the world. Many people have English when they come to Europe and Britain is the place they want to go. These are all reasons for trying to cross. With regard to the risks they take, obviously they are given absolute assurances by the people who set them up to cross. They are told there is no risk involved, that the vast majority get through and that there will be no problem. Unfortunately, there are problems and there are people who lose their lives. Even if lives were not being lost, the fact that these criminal enterprises are under way in Europe and in the seas around Europe, whether the Mediterranean or the English Channel, presents a challenge to all of us.

One of the points I was going to make the last night, when we had to close down the debate, was that there is a certain suspicion or worry among all of us that this is coming from a European Union that has, over many years, set itself up as a fortress Europe which wants to protect its borders and keep people out. A bit like the principles many other establishments in the world set up, the principle of guarding the borders at all costs has not worked out very well. It has not been a success. It has been a failure from a humanitarian perspective and in many other ways. All governments and the European Union need to reflect on that and on what other options are available to assist people who want to come to Europe, who want a better life and who want to contribute to society in whatever country they wish to come to. We have to reflect on how that can be done in a way that works for them and for everyone else involved. We are aware that there are labour shortages in many countries in Europe and our country is no different in that respect. There are ways around this and there needs to be a greater focus on finding solutions rather than on setting up this fortress Europe.

I will come to the amendment itself. I support Deputy Connolly in what she is attempting to do. We are talking about people who, for humanitarian reasons and as part of humanitarian organisations, wish to assist people in reaching safety and to ensure they have safe passage to where they need to go. There needs to be a means of doing that. The proposal from the Minister of State is that acting for these reasons shall be a defence while Deputy Connolly is proposing that it should not be an offence. There is a stark defence in law as to how those two sets of principles work out.

I appeal to the Minister of State to come back to this matter, to look favourably upon the amendment and to find a way to incorporate it into the legislation because it would be grossly unfair for people who are involved in saving the lives and liberty of others for very worthy humanitarian reasons to be prosecuted. We are also aware that many people are smuggled into the country. It is not just that they are smuggled into the country but, after being brought in, they are then enslaved in various ways. They are used as labour slaves or are enslaved in the so-called sex industry. There are enormous problems there that are also part of all of this. There are humanitarian organisations attempting to ensure that does not happen and to take people out of all of that. There is a very worthy reason for the Minister of State to look at this amendment again and to support it.

I agree entirely with the sentiments expressed by previous speakers in respect of this particular issue. I realise and know full well that we cannot solve the problems of refugees seeking refuge all over Europe. To be fair to the European Union, it was not the Union that made the decision to repel people from borders.

It was the individual countries in the European Union that took that stand, and they did so on the basis that there was not room for all the people seeking a safe haven. There may well not be. If one studies history, however, and looks at old film files from the 1930s, it will be possible to see thousands of people, with their belongings, walking, riding donkeys and bicycles, on carts and using every possible means of transport try to get to a safer place. They were trying to get to a place they felt was going to be better. Those people were not running away for fun. They were not leaving because they were going for a holiday. They were going somewhere else, to a safe place, because they felt threatened where they were. They were threatened, and many of those people were exterminated.

What we must look at now is how far we have come in the intervening period. I fear it is not very far. No matter what we say or where we say it, there will always be people in this country as well as in other European countries who will say that we cannot look after the world. It is right that we cannot, but we can make an attempt to look after some part of it. We can make some kind of a gesture, and put in place some kind of regulatory system that will at least have some appeal for the people who are desperate and encourage them towards it. Many of these people are now relying on racketeers, who have no concern for their safety or well-being.

Not so long ago, I had to remind some colleagues from another European country who were steadfastly opposed to accommodating anybody from any other country beyond the European Union that in 1957 we saw people running away from countries in central Europe. Those people ran for days, in terror, looking for some safe haven. As I said to one of those colleagues, we did not have a lot in this country in 1957 to offer to anybody, but we offered and we took some people on board. Those people proved helpful, and they stayed, grew into our economy and helped it. They brought their skills with them. We did that at that time in this country because there was a recognition of the humanitarian need to do something and to make a gesture. The gesture was important to those people, because they felt at that time that not everybody was against them. When those people from central Europe had their backs to the wall, they went somewhere, applied for refuge and got it. It was not to the extent they would have wanted, but many European countries did the same thing because there was a general recognition that something needed to be done.

I believe that same need exists now. I spoke about this issue in different committees at various times in the European Parliament and its environs. I was disappointed, however, not by the institutions of the European Union, but by the attitudes of the member states. The member states are the ones that decided to put up the walls and barricades. It was just the same as the wall that President Trump attempted to build to keep people out. How can it be possible to try to keep people out of a sophisticated modern economy, and to keep those poor, unfortunate and desperate people on the other side of such a fence? Do people think it is possible to keep people out indefinitely? Was it possible when Germany was divided? The wall across Berlin was thought to be the greatest thing ever, that it was going to stop everybody, and that nobody could ever get through, over or around it without being killed. We all went to see the wall, and all that kind of thing. The fact is that it did not prevail. It did not prevail because it was an injustice. It did not recognise the rights of individuals, the need for some kind of a humanitarian gesture and the need to recognise what the people on both sides of that particular wall wanted. Eventually, it disappeared.

What is possible in the context of this Bill is limited, but nonetheless there comes a time when we should look around us and ask ourselves how far have we come in this regard. Are we now capable of addressing issues such as these? For instance, we saw an image of a small child sitting down on a kerb along a road in Syria. It was about 18 months ago or two years ago, or perhaps a little more. He was covered in grime and soot from the smoke of explosions. He had put one hand to his head and looked at it because he felt it was bleeding. He cut a forlorn and small figure. It is very hard for us to look at these things and to not say somebody should do something. We know they should. We are part of that context as well, and we need to influence our ourselves and our neighbours towards acknowledging the need to take part in shouldering this burden.

There are those who say that Italy, Cyprus and Greece are on the front line and that they should do more. Those countries, however, have done an awful lot already. They have offered succour to millions of people, and so has Germany. We can claim they did it for their own selfish reasons, because they wanted employees, or whatever. All European countries are the same in that regard. They can all benefit from extra help and extra helping hands. I believe, therefore, that we must examine this aspect of international relations. We should be seeking to create a means of influencing ourselves and our European neighbours with a view to offering some sort of refuge to those people who now feel so desperate that the only thing they can do is to get on board a vessel that is not seaworthy, knowing full well that there is a good chance of a tragedy.

Everybody in this House is coming from the same perspective, which is that of trying to protect the lives of those people who are so desperate for a better life that they are prepared to pay somebody to smuggle them into another country, a country they see as providing a better opportunity. We have seen that those people have lost their lives. We saw it only last week, and we saw it in my county of Wexford as well in the past. We see it on our television screens regularly. These are real people, with families, friends and their own culture and history.

It is horrific to see people losing their lives. They are losing their lives when they are being exploited by smugglers. The question for us is how we challenge this situation. We have had laws to take on those smugglers for almost the last 20 years, with almost no convictions. We do not do much for those people being smuggled in high-risk situations. The smugglers do not care about the safety of these people. They just want to get their money, and to get those people on a boat, a raft or into a container. Once the smugglers have their money, they do not care. Therefore, we must figure out a way to change the balance in this context. NGOs are indeed bulletproofed now from any risk at all, but so are the smugglers, effectively. The people being smuggled continue to be exploited. We are seeking to change that balance with this legislation in a way that will allow us to get convictions of smugglers. These smugglers must feel under threat of facing prosecution, and, most importantly, conviction. This will deter them from carrying on their activities and protect people from being enticed into risky smuggling situations.

As I said, the present law is simply ineffective. With this legislation, we are seeking to change the balance in a way that will allow us to get convictions, while also protecting the NGOs. The people who are at risk are our priority, however. Our focus must be on protecting those people and on determining how we can do that. While this law could have been brought in some time ago, I do not agree that it has been delayed. I mean that in the sense that, for whatever reason, previous Governments decided not to bring in this law. I cannot get into the minds of previous Ministers for Justice and previous Governments, but I can say that we are certainly bringing this legislation in. As I understand it, however, it was a conscious decision for Ireland and the UK to stay out of this framework in the past.

There has been detailed discussion of this Bill. The Seanad undertook lengthy consideration and high-level discussion in respect of this legislation. The same has happened here. A guillotine has never been applied to this Bill, here or in the Seanad. Equally, if we do not complete this Stage of the legislation tonight, then we will come back to discuss it again. Let me be clear about that aspect. There is no question of this legislation not getting a serious, conscious, deliberate and deep consideration.

Looking at how we have changed the balance in this context, it has proved impossible to prove the “for gain” element. That is because that aspect usually takes place in another country or the people who are being smuggled are afraid to give evidence that they may have paid over funds. In those circumstances, then, we have looked to effectively reverse the burden in this regard.

However, if we think about the risk that is being alleged against the NGOs, we are very lucky in this country that we do not have a political prosecution system.

We have an independent Director of Public Prosecutions, DPP, who year after year has been proved to be independent and trustworthy. The DPP here would have to make a decision to prosecute an NGO or someone clearly acting out of humanitarian assistance for them to face the risk of a prosecution at all. The DPP makes an assessment as to whether there is a reasonable prospect of getting a conviction. I do not believe that most NGOs or people providing genuine humanitarian assistance would face prosecution. I do not believe that risk is there. I do not believe there is an unjustified or real risk of prosecution. Even when a matter goes to court, there is still a significant burden on the prosecution. It has to 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 in breach. That is a huge burden for the prosecution to prove even under this new law as amended. It is only if those burdens were overcome and someone believed they were an NGO or anybody providing humanitarian assistance, they would have to have gotten all that distance before they would need to meet the burden of proof. They can then raise that burden of proof and they only have to show it on the balance of probability, not beyond all reasonable doubt. There is no question of being guilty until proven innocent. What is being done here has been done in past legislation. I refer to the Illegal Immigrants (Trafficking) Act 2000. I have not seen any evidence that that Act has been misused by the DPP or anybody to get prosecutions against people who have been acting to provide humanitarian assistance.

If we were to accept either paragraph (a) or paragraph (b) of the amendment, we would create an impossible task. The proposed section 9(b) effectively puts us back where we were, as Deputy Howlin pointed out. While I accept that it would give cast-iron protection to NGOs, it also would give cast-iron protection to smugglers. It does nothing to protect the smuggled. Our motivation to change the law is to change that balance in such as way as to protect those acting to provide humanitarian assistance, but to be able to get those convictions. Where someone has been acting on the basis of humanitarian assistance, he or she is best placed to bring that evidence forward. For the Red Cross, that is going to be easy to do. I do not believe anyone is going to be prosecuted anyway but if that burden arises, it would be very easy to do for any recognised NGO.

I fear that the proposed section 9(a) would give rise to the same impossible task. If it afforded protection from prosecution, all it would take would be for somebody alleged to have smuggled to say they are acting for a humanitarian assistance organisation from, say, Libya, they cannot really get any evidence to show that because they cannot go back to Libya due to risk or whatever the case may be. That is the end of the prosecution. It is going to be almost impossible for anyone to disprove that once they raise it. If it is a bar to be prosecuted to say that one is providing humanitarian assistance, that is effectively where it will end. Otherwise, they are prosecuted and we end up in an evidence situation anyway.

I understand why these amendments have been brought forward. The intention and thought behind them are clear and positive. I just think that if they were accepted, it would create an impossible task. We would be in the same situation we have been in for the past 20 years. Important as it is to protect those providing humanitarian assistance - we are protecting them in this legislation - if we go back to where we have been, we will not do anything to protect the smuggled. That is where my priority lies in changing this law. We are not changing this lightly; it has to be done. That is why we are moving forward with this.

I think it has to be done because the Minister of State is under pressure and he has to have it completed by the end of the year. That is why it has to be done. I do not think five to eleven at night time is an appropriate time to tease out the nuances of this legislation. It should have been done at the relevant committee, with submissions from the various organisations involved to help in tease the matter out. I am left with no choice but to press an amendment. If the Minister of State tells me it is imperfect, I accept that. It is the best I could do and the best the Senators could do in the Seanad. If the Minister of State and I keep repeating ourselves, that is not teasing out issues. It is repetition on my part and on his.

What are the issues? They have been set out by no more august organisation than the European Commission, which produces regular communications. In September 2020 it told us there was an analysis of the effect of criminalising humanitarian organisations. I will jump to the back of the publication first to put it in perspective. In the policy recommendation section, it states that NGOs and individuals - whom my amendment tries to capture - in the EU providing humanitarian assistance have expressed growing concerns over recent years. Rescue operations at sea, those mandated by law, as well as support given to migrants on the move, be it at borders or within a territory of a member state, are reportedly carried out in the context of tension with national or local authorities, with rescuers and volunteers fearing undue administrative pressure and sanctions. I am reading from the Commission's communication to us. It points out that in a resolution on the issue, the European Parliament called on member states to transpose the humanitarian assistance exemption provided for in the facilitation directive, which the Government is trying to transpose through this Act. Recalling that the EU law does not intend to criminalise humanitarian assistance, the Commission states that it has taken stock of the situation since the evaluation of the facilitators package. In light of this, the Commission invites members that have not already done so to use the possibility provided for in Article 1.2 of the facilitation directive, which allows them to distinguish between activities carried out for the purpose of humanitarian assistance and activities that aim to facilitate irregular entry and transit. The communication goes on to raise other issues in respect of the chilling effect when countries pass legislation and do not make an exemption for humanitarian organisations or people acting on foot of humanitarian reasons.

The Irish Human Rights and Equality Commission says that the provision for humanitarian assistance as a defence rather than an exemption is not in accordance with international recommendations. In practice, it means that a person acting on behalf of a bona fide organisation or for humanitarian purposes will likely be charged with an offence. At that stage, it was under section 5. Thereafter it will be for that person to prove their innocence. Accordingly, this will likely have a chilling effect on people providing assistance to people seeking international protection. That is not me. That is the commission on foot of their analysis. If we look back at the EU's response to refugees - and Deputy Durkan was looking at this in terms of borders - the first major action by the EU was in respect of the plan for 2015-20 after what happened in Syria and other issues at the time. The emphasis was on the importance of the EU member states effectively tackling the offence by gathering and sharing information. We were not even doing that at the time.

Then the action plan became part of the European agenda on migration. They set out four pillars in that European agenda. Reducing the incentives and root causes for irregular immigration has never been tackled. Enhancing border controls through smarter borders has certainly been done as we build up to a 10,000 man and woman Frontex border.

I will not call it an army — Deputy Martin Kenny might help me with the word — but there are to be 10,000 people in the organisation called Frontex. We are certainly working on building up the borders around Europe. The other pillars are "rethinking and better implementing the common European asylum policy; and improving opportunities for legal immigration". We have failed to do that as well. I could go on.

On the one hand, there is very good language about protecting asylum seekers, refugees and migrants and putting them at the heart of the justice policy and EU; on the other hand, the reality is that people are drowning in the English Channel, the Mediterranean and elsewhere. All the time, we are building up the body that will protect the borders. I am simply asking that we protect the humanitarian organisations and comply with our legal obligations in the EU to protect people who are acting, for humanitarian reasons, to help somebody. We are not doing that with this provision.

We are being forced into accepting legislation that is far from perfect. The amendment might be far from perfect but it will do less damage than what the legislation, with its chilling effect, will do. As the Minister of State rushes to write a note and talk about the fact that we are not catching smugglers, I fully understand the challenge - we have legislation from 21 years ago that was not suitable. We did not change it or work on it, and we did not collect any information. I will address the latter point through the other amendments.

Very basic recommendations from the Irish Human Rights and Equality Commission reminded that basic data and a focus on the rights of people who are being smuggled are absent. Specifically, it is a question of the humanitarian exemption. I understand France has addressed this, though not perfectly. That is also listed in the various documents. I am not sure what other countries have done. This was a role for the justice committee. That is where all this should have been teased out. The Minister of State's anxieties about not having legislation strong enough to catch the smugglers should all have been teased out. In the absence of that, I intend to press my amendment.

This is Committee Stage of the Bill, and we have as much time as we need to tease out what we need to in exactly the same way as a committee.

We have no experts before us to tease out these matters.

No, but the net issues are very clear, in my judgment. Deputy Durkan made an important point. People say Europe has done this or that but it is member states which are taking the actions. When we had what was described as a migrant crisis in 2015, when 1 million people were moving across Europe, member states, one after another, under pressure from their own populations, built barriers. I hope we would be humanitarian but if 1 million people arrived on our shores together, what would the reaction of our people be? We have to try to approach these things in as humanitarian, logical and careful a way as we can.

This is not complicated legislation. It simply aspires to ensure we have a robust law to prevent the smuggling of people. That is what the Long Title and explanation are about. We must provide a robust law. Deputy Connolly referred to the guidance given by the Commission on how the directive should be transposed. It has to be done in a way that does not have a chilling effect on humanitarian actors. That is the simple issue. I do not believe the current Irish Government, or any Irish Government, would act in a way that would seek to criminalise humanitarian actors. In fact, we deployed our military and Naval Service to assist in rescuing people in the Mediterranean. However, as Deputy Durkan rightly said, we did not bring them back to Ireland. We landed them in ports that would accept them, in Italy and elsewhere. We have taken small numbers. In truth, over recent years we have taken in very small numbers. We do not even see the small numbers we commit to bringing to the country and assimilating. That is the truth of it.

I have not looked at the French legislation. If there are jurisdictions that have transposed the directive in a way that achieves the objective of having an effective anti-smuggling law whereby people such as those responsible for the awful tragedy in my constituency and that of the Minister of State, to which he referred and which is to be commemorated on Wednesday, 8 December, we must consider what they have done. It will be the 20th anniversary of the opening of the truck in Drinagh business park on the outskirts of Wexford town and the appalling vista visited upon those who had to administer to the victims. I spoke to many of them at the time. I went to Wexford General Hospital that morning. I remember going to the memorial a year later to see the families of children who suffocated in the vehicle. The people responsible for it have to be held to account. We have to have laws available to us to hold them to account. That is important; it is not an academic issue. It is critical that we have robust laws to prosecute people who exploit the vulnerable for profit, but we have to be able to prosecute in a way that ensures that genuine humanitarian actors are protected.

If the measure has been transposed in France or elsewhere in a way that achieves the objective better than the measure proposed to be adopted here, we should consider it. I ask the Minister of State not to have a closed mind on this matter. It is an important issue, probably the most important in this legislation that would cause dissent in the House. Will the Minister of State consider it between now and Report Stage if he intends to divide the House on it tonight? If he believes the amendment in the name of Deputy Connolly is infirm in some way, will he seek to determine how other jurisdictions have transposed the directive in a way that clearly protects bona fide human rights activists and organisations and at the same time does not impair our imperative to hold to account those who are responsible for immeasurable cruelties we have witnessed, even in this jurisdiction.

I understand the position the Minister of State is putting forward. He gave the example of a person from Libya or another such country coming here and being able to make the defence that he or she had been working for a humanitarian organisation, a defence that cannot be verified. Consider the case of a family from Africa who have been in Ireland for several years and learn of a relative in danger in their home country. It could be a child in danger of female genital mutilation. Let us say the family try to assist family or relatives in the country in question to take the child out of the area, perhaps through a humanitarian organisation, or the semblance of one, that helps in that regard. The organisation would not be recognised as a humanitarian organisation in the country in question because the very thing it is trying to protect the child from would not be considered a problem there in the way it would be in most parts of Europe. If the family assist the child, what they do could be presented as a defence, but it could also be considered an offence under this legislation. That is the difficulty that all of us are trying to get to. We can build up all kinds of hypothetical scenarios in which something like this happens.

Rushed law can cause problems. We have all come back to this Chamber on numerous occasions to go through situations that happened with the best of intentions and to find there were difficulties with them. At the same time, we have to find a way to ensure that the people who engage in this type of activity are identified and prevented from doing it again in the first instance, if at all possible, but certainly punished for doing it when they are caught. The Minister of State's point that membership of a humanitarian organisation may be used as a defence, an opt-out or a get-out-of-jail card by a smuggler may have some validity but, on the contrary, we would not want to criminalise a person doing something for a very good reason and with passion and humanity, perhaps for a relative or loved one he or she is trying to get out of a dangerous situation. It would be a terrible tragedy if we were to bring in a law which would in any way allow that to happen. While I accept that the DPP may at all times do his or her best, and with the best of intentions, mistakes are made. If we can at all, we need to make law which does not allow for those types of mistakes to be made. They could have detrimental consequences for a family or, as Deputy Connolly said when reading from the European Commission's report, may have a chilling effect on people attempting to do the right thing. We do not want that to happen either.

I concur with what the previous speaker said and support Deputy Connolly's amendment. I am thinking in particular of Seán Binder, who spent some time in County Kerry. He was arrested four months after arriving in Lesbos in 2018. He faces trial, as we know. Particularly in light of what happened in the English Channel, there is a feeling out there that there are hordes of people fleeing wars, most of whom are entitled to asylum, who are being lured in by people traffickers, criminals and so on. That is not the case. What has really happened over the past few years is that the UK in particular has stopped people applying for asylum. Their cases are stronger than ever. The west, let us face it, was complicit in creating the situations in Syria and in Iraq and for the Kurds which have led to all these people trying to get over here.

The reason I support the amendment is that the Bill, as drafted, would allow for people providing humanitarian assistance to be charged with an offence while their defence is awaited. They could perhaps be held on remand while awaiting trial. That should not be the case. There is something wrong with that. We need to reach out to some of the people trying to get over from France and create a Syrian response to what has been happening to them because it cannot continue. It is particularly ironic that, coming up to Christmas, Middle Eastern families - women, including pregnant women, and children - are drowning in probably the busiest sea channel in the world. They are taking the risk. They are buying kayaks in sports shops in their desperation to try to get across. Anyone who is legitimately trying to help those people cannot be criminalised.

I thank Deputy Connolly for tabling this amendment and bringing the focus of the House to bear on this issue. I listened closely to the Minister of State's explanation. I do not think anybody is arguing that we do not need to prosecute people smugglers. However, I find it hard to be convinced by the Minister of State's argument that if somebody from Lybia, for example, claims to be part of a humanitarian organisation, the State may not be able to disprove that. Certainly, somebody is being tried and has met the threshold the Minister of State described at the DPP's office for membership of an international terrorist organisation and for activities in that regard in the Middle East. The threshold for prosecution has been met. Indeed, they are being prosecuted in the Special Criminal Court because the organisation of which it is alleged they are a member is so pervasive in this State, it seems, that the State apparatus is unable to try them in the normal courts. That came as a surprise to me, but the DPP does not have to explain these decisions and they cannot be challenged in court. The State, therefore, has some ability to investigate and prosecute crimes abroad and to verify certain facts. I was involved in a citizenship revocation case once and I was shocked by the amount of information that was presented that the Department of Justice, the Minister of State's Department, had received from what was then another member state of the European Union. The State, therefore, has some intelligence abroad and has access to intelligence abroad so is in a position to meet that burden or proof that somebody is not a bona fide member of a humanitarian organisation.

However, how does this Lybian the Minister of State is so concerned about prove - and it is always these Lybians and north Africans and these people who cannot be trusted-----

That is not what I implied-----

I am glad that that is not what the Minister of State implied.

I should not need to clarify that. I did not use any language that even implied anything like that.

Okay. My question is how-----

The Deputy should not be disingenuous

I am not being disingenuous. How does such a person prove he or she is a member of such an organisation? Many people in this House will have spent some time in the Middle East and countries across other parts of the world. NGOs are small, diffuse, badly organised and badly funded. They are not like the Irish Human Rights and Equality Commission, where you can go online and verify who its members are. There are indeed NGOs practising in those countries where you can go online and verify who their members are. Usually they are very close to the regimes that pertain in those countries, though. How does an ordinary person prove that he or she is involved in humanitarian aid?

I remember the father and child who drowned crossing the Rio Grande a couple of years ago. There might have been a minute's silence for them in this House. Everybody was on their feet saying how awful it was. Is there a possibility that somebody who would intervene to save a drowning man trying to save his drowning daughter would face prosecution? That person would perhaps be able to satisfy the burden of proof, and the Minister of State has clarified that that would be on the balance of probabilities and would not have to be beyond reasonable doubt, but it seems to me that it would be obscene to prosecute somebody in those circumstances. To put on our Statute Book a provision whereby such a person would be prosecuted, albeit invited to satisfy the burden of proof that the assistance was given bona fide, would be a mark of a State that had lost its moral compass. The fact that that is done in the name of EU law or to implement or to transpose EU law would indicate to me that we are possibly part of a larger project. I am a supporter of the European Union and the European movement and always have been. However, I just wonder if it is losing its moral compass and we along with it.

I am happy to take back any suggestion that the Minister of State meant that people from certain countries are not to be trusted.

I am happy to accept that is not what the Minister of State meant and I withdraw that suggestion. However, I ask him to address the more serious point that somebody could be prosecuted for saving a human life. It is something we need to consider very carefully.

In a previous incarnation, I was honoured, along with the late former Deputy Des O'Malley and former Deputy Michael O'Kennedy, to participate in the formulation of the European Charter of Fundamental Rights. That was a great honour for all of us, for me in particular. At that juncture, all of the issues that eventually came to pass were discussed in all their facets and variations. We, the so-called advanced and developed countries around the globe, have a greater obligation than we have collectively shown to deal in an honourable fashion with the refugees who are fleeing from all kinds of hardship, slavery, persecution, prosecution and death.

We are not trying to press-gang the Minister of State into doing something that is not possible at this stage. However, I support the suggestion by Deputy Howlin that, if at all possible, the Minister of State postpone the decision for the moment and have some further consultations with his Department and colleagues, with a view to finding out if it might be possible to arrive at an acceptable formula that would eliminate the possibility of throwing out the good and bad together and recognise the need to put in place a life raft - no pun intended - for those who are genuinely in danger and suffering trauma, distress and stress. It would be ever remembered afterwards as a humanitarian gesture, when few gestures were available. We are not trying to force the Minister of State into making that decision. I know he is a very humanitarian Minister of State and fully accepts and understands all the facets that have been discussed today and will be discussed again, whichever decision is made. However, it would be worthwhile to consider the suggestion made by Deputy Howlin. It would have long-lasting benefits in that it would shine a light on an issue that has not been faced up to by most of the European Union.

The people outside the European Union are those who are in jeopardy. They believe the European Union is all things to all people, and to a certain extent, they are right. It is a means of protection. From time to time, opportunities will come for the European Union to show its concern in a meaningful way. I do not expect one country, or this country, to be the sole provider of assistance, but it is necessary. It is the right thing to do, and it could be done with a little imagination and concern for those who are less well off than ourselves.

We were refugees for long enough from this country. Thousands of our people emigrated in appalling circumstances and conditions, on coffin ships and so on. We learned the realities of going to countries where we could expect a welcome and those where we could expect none. We always adhered to the principle that we were willing to deal with others in a way that we would like to be dealt with ourselves - no better or no worse. That is a basic expectation.

I agree with Deputy Howlin. What we are looking at here is a net issue. As I have said, this matter has been carefully considered in the Seanad. We are carefully considering it in the Dáil today. This is the second time we have considered it, and if we have to come back again, we will consider it again. This is Committee Stage and the issue is being given detailed consideration. The argument that it is not being teased out or considered in detail does not stand up. The guillotine procedure has not been applied to this Bill at any Stage in the Seanad or Dáil. It is not a case of examining 120 sections and opposing one rather than another. It is very much a net issue.

According to the communication form the Commission: "In its Resolution on the issue, the European Parliament called on Member States ‘to transpose the humanitarian assistance exemption provided for in the Facilitation Directive'." Deputy Connolly referred to that. The communication states:

Recalling that EU law does not intend to criminalise humanitarian assistance, the Commission has taken stock of the situation since the evaluation of the Facilitators Package. In light of this, the Commission invites Member States that have not already done so to use the possibility provided for in Article 1(2) of the Facilitation Directive, which allows them to distinguish between activities carried out for the purpose of humanitarian assistance and activities that aim to facilitate irregular entry or transit, and allows for the exclusion of the former from criminalisation.

That is the point Deputy Connolly raised, and rightly so. However, we have done that. This is what we are doing here. We have made the exemption. In fact, 19 countries have not made any exemption. We are one of only seven countries to do so, and we have gone further than almost every other country in providing for such a broad exemption. The broad spectrum of the exemption will catch situations such as cases of family members or friends who might be trying to help someone. That is why we did not opt for a narrow definition. We have deliberately provided a broad and generally applicable definition.

The discretion in Article 1(2) of the facilitation directive to exclude humanitarian assistance from the scope of the offence has been taken up by only seven member states. We are one of those states. In many cases, where other states have taken up that exemption, it has been narrow in scope. I hear the Deputies' concerns, perhaps alluding to political prosecutions in other countries, particularly in Mediterranean countries. We have seen evidence of that. Thankfully, however, we do not have that situation in this country. We do not have a political prosecutorial system. We have an independent Office of the Director of Public Prosecutions, which is guided by a very strong code of ethics and guidelines that are regularly updated. The Illegal Immigrants (Trafficking) Act, which has been in place since 2000, covers similar circumstances, and we have seen no evidence of that legislation being misused in any way. That would only be used to bring a prosecution in the first place.

I provided the example of Libya earlier. If an NGO or a party was acting to provide humanitarian assistance, it would be best placed to give the evidence, but it would only need to give that evidence if the DPP decided to prosecute and the prosecution was able to meet the very high threshold, as I outlined earlier, of being able to get the prosecution across the line. The prosecution would need to prove the accused intentionally assisted someone to enter the State in breach of immigration law and the accused knew or had reasonable cause to believe that the entry was in breach of the law. That would have to be proven beyond reasonable doubt. That is a huge burden for the prosecution to meet. It is not that difficult, in most cases, for a defendant to be able to knock that back. We have seen in the way that burden is set out in current law that, to date, it has been almost impossible for prosecutions to end in convictions. Not only do we have an independent DPP, but we have a Judiciary we trust and which has proven itself again and again. We have a jury system that many countries do not have. Our prosecutors have a code of ethics and duties. Where they are aware of information that could exonerate a defendant, they are meant to bring it forward. It is not easy to secure a conviction in this country. It is certainly not easy to do it. It is impossible under the existing law and it will still be quite difficult under the new law.

The aim of this provision is to protect the people who are at risk of being smuggled. That is the priority. I do not accept that under this law, NGOs or anyone providing humanitarian assistance will be at any real risk of unjustified prosecution.

If we accept the amendments, we will end up in the same situation we are currently in, which is an impossible task for prosecutors. If it is a bar to prosecution for a person simply to say that he or she was acting for humanitarian reasons or for a humanitarian organisation, where is that decision made? Is it simply the case that a person raises it and is then not prosecuted? A person could possibly end up in the worse situation than this legislation where it ends up being teased out in a criminal court, where the prosecutors do not accept the person's assessment. The person would not have the defence of the basis of probabilities, and he or she would be into a full-square court case. In that situation, I believe the prosecutor would find it almost impossible to prove the case anyway. Such cases simply would not be brought against smugglers as soon as that was raised. That is my assessment of this.

We are not doing this lightly. This was seriously thought out before this legislation was even brought in. It has been teased out in Seanad Éireann. It has been teased out in this Chamber. We firmly believe that there is good reason for bringing in this law the way we are. We believe that we have met the European Parliament and European Commission's call here. Ireland is one of only seven countries bringing in any exemption at all, and 19 member states have none. Of the seven countries, Ireland has done this in a very broad generally applicable way. If we trust our Director of Public Prosecutions, our judges and our juries, anyone acting out of humanitarian reasons is not at real risk. If such a case arose, which I do not believe it will, I have no doubt that this matter would be reviewed very quickly. The Criminal Law (Human Trafficking) Act has been in existence since 2008 and has not given rise to an outturn of the feared risk that has been raised here.

The Minister of State said that apart from 19 countries only seven countries have brought in the exemption. The Minister of State has not brought in an exemption; he has brought in a defence. That is the whole issue. I mentioned France but France has not brought in this measure in a perfect way at all. There are issues around it, but it has brought it in. Some parts of it are good.

I agree with what Deputy McNamara said. I am aware of the Minister of State's bona fides on this, and I am not attacking him personally, but the result is a State that sets up to criminalise a humanitarian organisation. The humanitarian organisation will be charged. It may not be charged but the provision allows for it to be charged, and the burden is on that organisation or the person who acted in a humanitarian way for humanitarian purposes, to prove that. It has reversed the difficulty. The Minister of State is nodding in agreement with that. In conscience I cannot agree with that. With regard to teasing it out, I welcome the Minister of State's support on the last occasion where he agreed to an adjournment of the debate. I acknowledge the Minister of State's bona fides but the nuance of this should have been done on Committee Stage. I am not sure what submissions were submitted in person when these issues were teased out. I have seen a letter from the chairperson. I am not finding fault here and I believe that the Minister of State was under pressure, but the letter states that the committee agreed to commence pre-legislative scrutiny by requesting an oral briefing from the Department officials, which happened on 29 June. The letter, which went back and which was signed on 29 June, stated that the committee was happy with that. I am not sure where this issue was teased out at that level. Of course it is being teased out back and forth now but the Minister of State indicated that he will not be agreeing with the amendment, even though he has to try to tease it out with us. I am pressing the amendment.

Will the Minister of State explain the difference between "defence" and "an exemption"? There are two terminologies being used. Clarity on that would help us all.

This is getting into where the burden lies, and the Commission never got into that. We are saying that this means an exemption for humanitarian assistance. Although I do not believe such a situation would realistically happen, if a person ended up being prosecuted and was about to be convicted, because the prosecution met the burden beyond reasonable doubt of the elements of the offence, then the exemption kicks in where he or she would raise the defence. If there is a defence on the balance of probabilities, the exemption kicks in. That is the exemption. The Commission has not stated where the evidential burden should lie or where that balance is. It just said that it believed there should be an exemption. As I said, Ireland is one of just seven countries that brought in an exemption, and we have brought in a very broad exemption.

Does the exemption come after the charge is preferred?

The exemption comes after-----

It is an defence, not an exemption.

It gives an exemption if the prosecution has reached the criteria to prove the elements of the defence beyond reasonable doubt. One does not need an exemption until that arises. That is when the exemption comes in.

No, that is not correct. If we take-----

Can I just finish on this point? France has been raised several times here. France provides for a humanitarian assistance exemption under the offence of facilitation of unauthorised residents only. While France has an exemption, it is in exceptionally limited circumstances. I do not want it left out there that France has a broad exemption.

It is far from that. I did not quote France as a wonderful example. I quoted it as a limited example, referred to in different documents that I have read as one case where they allowed for an exemption in certain circumstances.

A question has been raised and I will go back to what the Irish Human Rights and Equality Commission said, as opposed to the European Commission. In its submission the Irish Human Rights and Equality Commission said, "The Commission recommends that further consideration should be given to revising the General Scheme to provide humanitarian assistance as an exemption, or exclusion, under proposed legislation as opposed to a defence." It specifically asked for humanitarian organisations, or people acting for humanitarian reasons, to be excluded from the Bill as an exemption or exclusion, not as a defence. The Government has gone ahead and said, "No, we will give a defence, but we trust that our Director of Public Prosecutions, whoever he or she is, may or may not charge the person." That is not good enough. Our legislation should be clear, and it should have a purpose. The purpose is to increase the penalties and to broaden the scope to increase the extra-judicial restriction outside of the country to stop smuggling and catch the smugglers. I have no difficulty with that. I have a difficulty with not excluding humanitarian organisations or people who are acting for humanitarian reasons to help in situations such as those we have seen recently in the English Channel. Theoretically, if that boat was in Irish waters and the next day an Irish fisherman went to help that boat, that fisherman could be caught for helping to smuggle people into this country. Is that correct, theoretically, as we look at that at this time of the night? We would be dependent on the Director of Public Prosecutions to prosecute or not prosecute that fisherman for helping to bring-----

The person would be entitled to use that as a defence and be entitled to an acquittal. What the Deputy is proposing is that the status quo remains. While the Bill provides not even a risk of someone who may be acting for humanitarian reasons being prosecuted, the Deputy's amendment would maintain the situation where there is no risk to smugglers being prosecuted.

Our priority here is not to increase penalties on smugglers. Our priority is to protect the vulnerable people who are exploited by smugglers, and the way to do that is to convict the smugglers. That is what we are attempting to do here. We have had what the Deputy is proposing for the last 20 years and it has not been effective at protecting the vulnerable people. It has been effective at protecting the smugglers. We are saying that what has happened to date is not working. We are simply saying that for anybody to say "I am acting out of humanitarian assistance" acts as a bar to prosecution. That, if anything, makes the situation even worse than what is there at the moment. That is our position on it.

I want to clarify three scenarios. The Minister of State has clarified the first, as I hoped he would. If a boat is going down in Irish territorial waters, or just outside Irish territorial waters, and an Irish fishing boat, or any fishing boat, comes across it and brings the people in, can those on the fishing boat be prosecuted? The Minister of State said that, yes, they will have a defence that they can avail of, but they will be prosecuted.

No. We have a DPP who is independent and who makes an assessment on whether or not to bring a prosecution. There is no "will". There is nothing definite going to happen, quite the opposite. We have an independent DPP who has to make that assessment as to whether it is reasonable. Among a lot of other criteria, the DPP takes into consideration whether there is a reasonable possibility of a conviction.

I understand the DPP has to bring a charge if there is a reasonable-----

The DPP does not bring the charge.

Okay. That is the first scenario. The Minister of State is saying it is possible that a fishing boat would be charged but it will depend on the circumstances. I had a more specific point. If people are being smuggled, they cannot be charged with smuggling themselves, clearly, because they are victims and they are being smuggled by these people who smuggle people in, subject them to appalling risk, take their money and, in many instances, have no regard whatsoever for human life. I am hoping the Minister of State will say “No” to this question. If a person is being smuggled and a boat starts to go down, and that person saves somebody else and gets to shore, that person knows he or she has helped somebody to illegally enter the country. Such people know they have met all of the criteria for the offence, or the hurdles the Minister of State has described to me. They know they are entering the country illegally. The vast majority of people who enter the Irish State, or France or England - we can take our pick of states - know they are doing it illegally but they are just desperate people. They know it is illegal to enter the State but they save somebody else and bring that person to shore. Is there an exemption in law for persons in those circumstances not to be charged, or are they charged?

For example, would I have to say that I knew I was going to enter the country illegally and that that was the plan? Of course, I was doing it to support my family and get a better life, but that was the plan, and I knew everybody else in the boat was too. The fact I saved one of them means I can be charged with people smuggling but if I just let them drown, I cannot. Is that a correct understanding of this – not that people would be convicted but that they can be charged? I find the idea problematic that somebody can be charged for saving a human life.

The Minister of State says the old system did not work because people smugglers were not successfully prosecuted in Ireland but, under the new system, is a people smuggler not better off letting people drown or die in the back of a lorry? Are they not better off to let them die than bring them safely ashore? If that is the case, and I am asking if it is the case, then I would have to question the morality of the Bill.

On the last point in that scenario, not only will they be charged with smuggling, but I would expect they will be charged with manslaughter, if they let someone die. If the smuggler-----

No one can enter the country if they drown.

They do not enter the territory of Ireland if they drown. It is like Stalin’s "no person, no problem".

This is an extraterritorial Bill. People do not have to cross a particular line to be charged with this. It is an extraterritorial Bill. If they let someone die, as potentially happened in Wexford, they can be charged with manslaughter or even murder. I would expect additional charges will be brought against those people and rightly so.

The purpose of this Bill is to ensure those who are smuggling, who are taking advantage of vulnerable people and who are putting lives at risk can face conviction for what they are doing. We have put a very broad defence in the Bill, if it was ever actually needed, to ensure that people or organisations acting for humanitarian assistance will not end up being convicted. However, we have to be very careful so that in protecting those who are acting out of good intentions, we are not actually creating a risk to those who are at risk of being smuggled by creating a situation where smugglers feel they are acting risk-free.

On the Minister of State's assertion that the old legislation failed or did not work, it was not a failure of conviction; it was a failure of detection. I expect very few people were ever actually detected, arrested or charged with smuggling persons into the country in the first place. It is very unlikely in such circumstances that any legislation is going to work unless we are able to detect and capture these people, or have a hope of doing that. The Minister of State put forward the scenario that the reason we have this situation is because the old legislation did not work and there was this loophole that people used. They never had the opportunity to use a loophole because they were never captured in the first place. Therefore, the Minister of State is placing that argument on a ground of sand.

I am slightly confused by the Minister of State's contention that borders are irrelevant to the purpose of the Bill, if that is how I am to understand it. We are talking about the Criminal Justice (Smuggling of Persons) Bill 2021, section 6 of which states: "A person is guilty of an offence if he or she intentionally assists the entry into, transit across or presence in the State". The "State" is Ireland and its territorial waters. If somebody lets the person drown, he or she has not assisted that person anywhere. I appreciate that we want to discourage immigration and the European Union wants to discourage immigration. However, my question is this. By assisting somebody, even if it is as a humanitarian act, even if it is the smuggled person who assists somebody, are they not subject to prosecution for doing so?

This is about catching smugglers. We accept that they are bad people and that their moral compass is askew. Most of us have read stories in reliable media about people smugglers who take people out on the high seas and do not care very much what happens to them. Are we saying they cannot be prosecuted under this section but those who intervene to save the lives of smuggled persons can be prosecuted?

I appreciate that there is a problem if a smuggler says he or she was saving a life and what could he or she do but bring the person or persons ashore. This makes it difficult to prosecute such a person. I appreciate that. Notwithstanding the difficulty, however, it is far worse, in my view, if, through our criminal laws, we seek to incentivise such activity in any way. There is a big debate on the question of whether a person commits a criminal offence if he or she watches somebody drown and does not intervene to save that person. Colleagues may recall a recent case where, for the first time, somebody was prosecuted for not intervening to save a life. In fact, there is no obligation whatsoever to save somebody else's life; there is only an obligation not to imperil others or cause them any harm. If we are incentivising people not to intervene, and it seems to me that section 6 does so, then there is a problem. That is saying it is worse to smuggle somebody in than it is to save a person's life. I appreciate it is difficult to determine between the two and to prosecute in such instances, but I would rather that be the case than to enshrine in legislation a situation whereby somebody who intervenes to save life can be prosecuted, even if such persons have a defence open to them. In my view, that is morally problematic.

First, the issue of duty of rescue is beyond the scope of this legislation. The Bill does not get into that.

In regard to the extraterritorial issue, section 6(3) states: "A person who, in a place outside the State, aids, abets, counsels, procures or attempts the commission of an offence under subsection (1) or subsection (2) is guilty of an offence." Therefore, there is an extraterritorial element to the provisions.

On Deputy Martin Kenny's point, the reason there have not been convictions is not a failure to detect where people have been acting as smugglers but an evidential problem in terms of detecting proof of payments. That is the reason we are switching the burden of proof.

How many charges have been brought?

How many prosecutions failed on that basis?

In normal course, if the DPP is not satisfied that the evidence is there, the prosecution will not be brought forward. It is not simply a case of failed prosecutions. If the DPP is of the view that an element of the offence cannot be proved or the evidentiary burden cannot be met, no matter how certain the prosecutors may be that somebody is guilty, the prosecution will not be progressed. That is in the DPP's guidelines.

We are getting into the realms of repetition. Deputy Connolly has indicated she is pressing amendment No. 1.

Amendment put:
The Dáil divided: Tá, 56; Níl, 68; Staon, 0.

  • Andrews, Chris.
  • Barry, Mick.
  • Berry, Cathal.
  • Boyd Barrett, Richard.
  • Brady, John.
  • Browne, Martin.
  • Buckley, Pat.
  • Cairns, Holly.
  • Canney, Seán.
  • Carthy, Matt.
  • Clarke, Sorca.
  • Collins, Michael.
  • Connolly, Catherine.
  • Conway-Walsh, Rose.
  • Cronin, Réada.
  • Crowe, Seán.
  • Cullinane, David.
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  • Doherty, Pearse.
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  • Farrell, Mairéad.
  • Gannon, Gary.
  • Gould, Thomas.
  • Guirke, Johnny.
  • Healy-Rae, Danny.
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  • Howlin, Brendan.
  • Kelly, Alan.
  • Kenny, Gino.
  • Kenny, Martin.
  • Kerrane, Claire.
  • Mac Lochlainn, Pádraig.
  • McNamara, Michael.
  • Munster, Imelda.
  • Murphy, Catherine.
  • Murphy, Paul.
  • Mythen, Johnny.
  • O'Callaghan, Cian.
  • O'Rourke, Darren.
  • Ó Broin, Eoin.
  • Ó Murchú, Ruairí.
  • Ó Ríordáin, Aodhán.
  • Ó Snodaigh, Aengus.
  • Pringle, Thomas.
  • Quinlivan, Maurice.
  • Shanahan, Matt.
  • Sherlock, Sean.
  • Shortall, Róisín.
  • Smith, Bríd.
  • Smith, Duncan.
  • Stanley, Brian.
  • Tóibín, Peadar.
  • Tully, Pauline.
  • Ward, Mark.
  • Whitmore, Jennifer.

Níl

  • Brophy, Colm.
  • Browne, James.
  • Burke, Colm.
  • Butler, Mary.
  • Cahill, Jackie.
  • Calleary, Dara.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Carroll MacNeill, Jennifer.
  • Chambers, Jack.
  • Collins, Niall.
  • Costello, Patrick.
  • Cowen, Barry.
  • Creed, Michael.
  • Crowe, Cathal.
  • Devlin, Cormac.
  • Dillon, Alan.
  • Donnelly, Stephen.
  • Donohoe, Paschal.
  • Duffy, Francis Noel.
  • Durkan, Bernard J.
  • English, Damien.
  • Farrell, Alan.
  • Flaherty, Joe.
  • Flanagan, Charles.
  • Fleming, Sean.
  • Foley, Norma.
  • Griffin, Brendan.
  • Harris, Simon.
  • Haughey, Seán.
  • Heydon, Martin.
  • Higgins, Emer.
  • Hourigan, Neasa.
  • Humphreys, Heather.
  • Kehoe, Paul.
  • Lahart, John.
  • Lawless, James.
  • Leddin, Brian.
  • Lowry, Michael.
  • Madigan, Josepha.
  • Martin, Catherine.
  • Matthews, Steven.
  • McAuliffe, Paul.
  • McGrath, Michael.
  • McHugh, Joe.
  • Moynihan, Aindrias.
  • Murnane O'Connor, Jennifer.
  • Naughton, Hildegarde.
  • Noonan, Malcolm.
  • O'Brien, Darragh.
  • O'Brien, Joe.
  • O'Callaghan, Jim.
  • O'Connor, James.
  • O'Dea, Willie.
  • O'Donnell, Kieran.
  • O'Dowd, Fergus.
  • O'Gorman, Roderic.
  • O'Sullivan, Christopher.
  • O'Sullivan, Pádraig.
  • Ó Cathasaigh, Marc.
  • Ó Cuív, Éamon.
  • Phelan, John Paul.
  • Rabbitte, Anne.
  • Ring, Michael.
  • Smith, Brendan.
  • Smyth, Niamh.
  • Stanton, David.
  • Varadkar, Leo.

Staon

Tellers: Tá, Deputies Catherine Connolly and Brendan Howlin; Níl, Deputies Jack Chambers and Brendan Griffin.
Amendment declared lost.

I move amendment No. 2:

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.".

Amendment put and declared lost.

I move amendment No. 3:

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—".

Amendment put and declared lost.
Section 9 agreed to.
Section 10 agreed to.
NEW SECTIONS

I move amendment No. 4:

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.".

Amendment put and declared lost.

Amendments Nos. 5 to 7, inclusive, are related and will be discussed together.

I move amendment No. 5:

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 will speak to these amendments.

We only have a few minutes remaining allocated to this debate. I will be calling on the Deputy to propose the adjournment of the debate.

I advise Members that we are within a few minutes of the voting block. If they leave they will have to return very quickly. The period for ringing the bells will be short.

This is a very basic amendment and I would think the Minister of State would accept it. It is a factual amendment and we are asking that on an annual basis, the Minister would lay a report before both Houses of the Oireachtas detailing "(a) the number of prosecutions not pursued due to a humanitarian defence". I will come back to this, as it speaks to the matter that the Minister of State has spoken to. The report would also detail:

(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.

The Minister of State has said he does not envisage that the defence would be necessary because there would be no prosecutions and he has the utmost trust in the director or prosecutions, whoever that is or may be in the future. He does not believe anybody will be charged if they are acting for bona fide humanitarian reasons or if it is a humanitarian organisation.

I speak directly to this point now. If the Minister of State believes that, he should have absolutely no trouble with this amendment because we are seeking to have evidence about how this Act will be implemented and whether it will have the chilling effect on humanitarian organisations on the ground, indicated in paragraph (c) of the amendment. I have already quoted the European Commission communication and have referred to the Irish Human Rights and Equality Commission in this regard. I have mentioned the reported experience from organisations on the ground where there has been a chilling effect from the interpretation of the directive and decision we are seeking to implement with this. Put very simply, perhaps I could stop talking if the Minister of State indicates he is in agreement with the amendment. He is shaking his head. I am not sure what is the problem with an annual report being laid before the Houses on the number of prosecutions not pursued due a humanitarian defence.

I can go some of the way, on reflection, in respect of what the Minister of State has said about how we must bring in this legislation because there have been so few prosecutions under the existing legislation, which is inadequate and now 21 years old. If I go that far and accept the argument that we need stronger recommendations, the Minister of State must accept that we should see evidence every year on the number of prosecutions brought or not brought due to a humanitarian reason. I am not sure how long I have left.

It is a little more than a minute.

I am not alone in being tired because it is late at night but I am speechless at the idea that the Minister of State cannot accept this amendment, given his bona fides and the arguments put by him that humanitarian organisations would not be prosecuted. He has argued that no Director of Public Prosecutions, either a he or a she, would ever see fit to have a prosecution in the case of a person acting for humanitarian reasons. That relates to paragraph (a) of the amendment, which specifies those who are not prosecuted.

The second paragraph relates to people prosecuted where the humanitarian defence is applied and, we presume, is successful. The third paragraph relates to whether there has been a chilling impact. As I am sure others wish to speak to the amendment, that is all I will say at this point.

We discussed the potential impact of this Bill and the Minister of State outlined its rationale in detail. I do not wish to characterise the Minister of State incorrectly but if I understood him correctly, he said that if somebody was prosecuted, notwithstanding the fact that the act was humanitarian assistance, and if that person was found guilty, the Minister of State has no doubt this would be revisited very quickly by this House. How will it be revisited if nobody knows about it? If there is no reporting mechanism, how is anybody to know about it?

Of course, in the courts justice is done in public. I am sure the Minister of State has been in many District Courts up and down the country, as have other people in the Chamber for a variety of reasons. There is not a court reporter in every court and although I have every respect for the media, are we are to rely on them to do our job? We must have a reporting mechanism because how else might we revisit the matter? How do we revisit something because of a certain outcome if nobody knows about the outcome?

Progress reported; Committee to sit again.