Criminal Justice (Female Genital Mutilation) Bill 2011: Committee and Remaining Stages

Sections 1 to 3, inclusive, agreed to.
SECTION 4
Question proposed: "That section 4 stand part of the Bill."

While an amendment has not been tabled in respect of the issue I wish to raise, will the Minister for Health consider the matter? This morning, I received a comprehensive 31-page legal opinion regarding extraterritorial jurisdiction courtesy of Amnesty International. The opinion is that of Ms Maria McDonald, BL. I am unsure as to whether the Minister has seen it, but careful consideration should be given to the issue.

Section 4(1)(c) of the Bill refers to “a person who is a citizen of Ireland or is ordinarily resident in the State, and would constitute an offence in the place in which it is done.” This rules out cases in which the act is carried out in a place where it is not illegal, which means the person could not be charged in Ireland. This is not the position of the UK legislation, under which the person can be prosecuted if the procedure is carried out in a country where it is not illegal.

The legal opinion, which was passed on to me by a Seanad colleague, cites a number of cases, in particular a judgment of Chief Justice Mr. Kevin O'Higgins. The Lotus case in international law dates back to 1927 and the Chief Justice referred to it during a case that related to Article 26 of the Constitution and the Criminal Law (Jurisdiction) Act 1975. He stated: "It is established in international law by the decision of the Permanent Court of International Justice in the Lotus Case that every sovereign State has power to legislate with extra-territorial effect in the sense that it may enact that acts or omissions done outside its borders are criminal offences which may be successfully prosecuted within its borders — this is sometimes called the jurisdiction to prescribe — provided that the events, acts or persons to which its enactment applies bear upon the peace, order and good government of the legislating State".

This seems to suggest there is no reason not to incorporate the relevant provisions in this Bill, as was the case in the UK. While it has been claimed that Article 29 of the Constitution prevents us from introducing such legislation, the legal opinion I have cited seems to hold a different view. Will the Minister consider it? It is unfortunate that, according to the figures we have received, 3,000 women in Ireland have undergone the procedure. More than 1,300 of those are from Nigeria. Under section 3, a person who removes a girl or woman from the State can be prosecuted. However, a person involved in carrying out the procedure in another state where it is not illegal can only be prosecuted for removing the girl or woman and not for carrying out the procedure. I ask that the Minister take another look at this matter. I will try to make the opinion available to him. I have already discussed this issue with the Minister's departmental officials who have outlined the reasons this cannot be included. However, I believe this issue should be revisited prior to the Bill going before the Dáil.

I reiterate my thanks to Amnesty International and Ms Maria McDonald for supplying us with the opinion. I believe the requirement in section 4(1)(c), that an offence would constitute an offence in the place in which it is done, would benefit re-examination before going to the Dáil. As stated by Senator Colm Burke, this is not the case in British or Scottish legislation. I have also raised this issue with the Department and I am conscious there are Irish constitutional reasons the principle of dual criminality is included. The danger is that this may undermine the import of the legislation.

In most African countries, such as Nigeria, FGM is an offence. However, the concern is that in a state like Somalia where there is less state authority this might not be an offence. There are may also be other states where it may not be offence. I am conscious also that Article 44 of the European Convention on Violence Against Women, which is quoted by Maria McDonald, provides that state parties should ensure their jurisdiction is not subordinated to the condition that the acts are criminalised in the territory where they were committed. I know that the Minister, his officials and the Attorney General's office have already looked at this issue but I ask that this matter be briefly looked at again prior to the Bill going to the Dáil. If FGM is regarded as a crime against humanity or equivalent to torture then there is an argument that the normal rule of dual criminality perhaps should not apply in this case. I hope the Minister might review the matter one more time.

I thank Senators Burke and Bacik for raising this important issue. As acknowledged by Senator Bacik, the Department is aware of the work done by Amnesty International and its report on the need for dual criminality provision. We have sought advisory counsel's advice on the matter. In the meantime, current advice stands. However, as Senator Bacik pointed out there will be an opportunity between now and when the Bill goes to the Dáil to look again at this matter.

The Bill includes a requirement of dual criminality governing an act done by an Irish citizen or a person ordinarily resident in the State. As already pointed out, this does not apply in Scotland or England. However, they do not have a constitution, we do, which makes this necessary. That is the advice we have received to date. Where extraterritorial jurisdiction as opposed to universal jurisdiction is exercised, it almost inevitably includes a requirement for dual criminality. Article 7 of the European Convention on Human Rights is of particular relevance as it provides that no person shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. I acknowledge that convention has not yet been fully signed up.

Ireland is involved in a draft Council of European convention on preventing and combating violence against women. 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 the convention is ratified. Senator Bacik referred to Somalia as a state wherein FGM is not an offence. However, I can assure her that there is a long list of countries wherein it is an offence, including Benin, Burkina Faso, Central African Republic, Chad, Cote d'Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Ghana, Guinea, Kenya, Mauritania, Niger, Nigeria — a country in respect of which there are serious concerns given we have a number of people from Nigeria living here — Senegal, South Africa, Sudan, Tanzania, Togo, Uganda and Zambia.

I take on board the points raised by Senators Burke and Bacik. We will take another look at the issue. We do not want any loopholes in this law that would allow people who perpetrate this terrible violence against women to have any comfort.

Question put and agreed to.
Sections 5 to 8, inclusive, agreed to.
Amendments Nos. 1 and 2 not moved.
Section 9 agreed to.
Sections 10 and 11 agreed to.
SECTION 12

Amendments Nos. 3 and 4 are related and will be discussed together.

Government amendment No. 3:
In page 10, subsection (1)(a), line 27, after “Affairs” to insert “and Trade”.

These are technical amendments which reflect the change in name of the Department of Justice, Equality and Law Reform to Department of Justice and Equality and Department of Foreign Affairs to Department of Foreign Affairs and Trade.

Amendment agreed to.
Government amendment No. 4:
In page 10, subsection (1)(b), line 31, to delete “and Law Reform” and substitute “and Equality”.
Amendment agreed to.
Section 12, as amended, agreed to.
NEW SECTION
Government amendment No. 5:
In page 10, before section 13, to insert the following new section:
Subsection (1) of section 5 (inserted by section 4 of the Criminal Procedure Act 2010) of the Criminal Justice Act 1993 is amended—
(a) in paragraph (c), by deleting “and”,
(b) by inserting the following paragraph after paragraph (c):
"(ca) an offence under section 2, 3 or 4 of the Criminal Justice (Female Genital Mutilation) Act 2011, and”.
and
(c) in paragraph (d), by substituting “paragraph (a), (b), (c) or (ca)” for “paragraph (a), (b) or (c)”.”.

During the course of my Second Stage speech, I mentioned that my officials were reviewing the Bill to strengthen provisions in relation to the victim. I now propose to make an amendment to explicitly state that victim impact evidence provisions would apply to offences set out in this Bill in accordance with the Criminal Justice Act 1993. This provision would allow a victim of a FGM offence or, in certain cases, a representative for her to make an oral statement, commonly called a victim impact statement, at a sentencing hearing. This statement allows the court to hear what impact the offence has had on the victim. This amendment is in line with current provisions concerning other serious crimes against the person.

I welcome this amendment. I commend the Minister and his officials for including this provision in the Bill, as the Minister indicated in his Second Stage speech he would. It is important that victims of FGM would have an opportunity, if they so wish, to speak to the court in regard to the impact the offence has had upon them. It is very important and significant for victims of sexual and other offences against the person to have this facility in the court room. I commend the Minister for including this provision in the Bill.

Amendment agreed to.
Sections 13 to 15, inclusive, agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

I welcome the passing of this Bill and the support it has received from all sides of the House. That is commendable and shows the importance attached to the Bill.

I thank the Minister and the previous Minister for their work and I particularly thank the Minister's officials from the Department of Health who have worked very hard on the Bill since the first version of it was introduced as a private Members' Bill last year. It is important that we pass legislation specifically criminalising this gross violation of the rights of women and children, that there is clarity around the law on it and that we have given good consideration to the provisions of the Bill. I know it has been through the Department of Justice and Equality and the Attorney General's office and, as the Minister said, various advices have been sought from advisory counsel. I am glad to hear this and believe it is a mark that the Bill will withstand scrutiny and will be robust.

The Bill is of huge importance, not just in sending a deterrent message or a symbolic message for members of different migrant communities here, but also for those working in the front line with such communities, for NGOs working with women and children who may be survivors of FGM and for doctors and the medical profession. I pay tribute to the many NGOs which have fed into this process and which have worked for many years on the need for legislation, including AkiDwA, the Irish Family Planning Association, the Institute of Obstetricians and Gynaecologists, the National Women's Council and all the different organisations I named on Second Stage, all of which have fed into the Bill and made recommendations that have strengthened it at different stages. I also highlight the role of Amnesty, whose last minute briefing was very helpful to us on Committee Stage.

A great deal of work has gone into the Bill. I thank all who had an input and again thank the Minister and his officials.

I thank the Minister for his support for the passage of the Bill and for the Government amendments. I again thank Senator Bacik for instigating the Bill and thank all parties, including my own, for their support in its passage.

I will make several general points. We should all be mindful of the importance of enforcement and of ensuring the laws which are enacted upon the passing of this Bill are effective and comprehensive, and that the resources are available to ensure those laws can be implemented. If the legislation is to be effective, resources are important and I hope the Minister will be mindful of this.

It is important that we keep this legislation under review. While the Bill has just been passed and we hope it will have the intended effect, a number of concerns have been raised. Senator Bacik referred to AkiDwA and I will highlight some of the concerns it raised. One of the issues for AkiDwA concerned the defence or protection of mental health, which could conceivably be used not merely for surgical or cosmetic purposes but for the defence of the act of mutilation itself. The Minister will appreciate it is important that it be clarified that no such defence could be offered and that the legislation is robust enough to ensure that such a defence could not be used. It is important that we tighten whatever potential loopholes may exist and I hope the Minister will clarify this point.

I am aware of concerns in regard to the offence of aiding and abetting and the possibility that this may cover all instances of coercion that could occur. Coercion is a significant issue in the context of FGM. I am sure the Minister will agree it is important that the legislation offers as complete a protection as is possible in regard to the possibility of coercion, and that this possibility should remain under review and should be taken into consideration by the Minister. I am sure the Minister is mindful of the concerns raised by AkiDwA and other civil society groups which have been campaigning on this issue.

The laws we are passing are robust enough. The Bill gives a clear commitment by the State, its people and its public representatives that we will not tolerate this act and that the laws should be robust enough to defend people against these kinds of acts taking place. I appeal to the Minister to ensure that all of the health issues, both physical and psychological, which affect women who have undergone these acts are met by the Department of Health.

The issue of direct provision was raised at the previous sitting and it is an issue the House could revisit. I have serious concerns about the whole process of how we treat asylum seekers. We are dealing here with vulnerable women and serious concerns have been expressed by those who advocate on behalf of immigrants that the direct provision centres can create an "out of sight, out of mind" attitude. This should not be the case. The issues should be very much in mind and we should be mindful of any violence which may be perpetrated against anybody in these centres by members of their own community or anybody else. I hope the Minister will reflect on this point. I ask that the required health services are available to women who are victims of this act as a matter of priority.

The Chair has given latitude in recent weeks due to the significant number of new Members who may not be totally familiar with procedure. In an attempt to be helpful to Senator Cullinane and to others, it is normally a courtesy of the Chair to allow the spokesperson at the end, once the Bill has passed, to acknowledge the passage of the Bill. The remarks Senator Cullinane contributed would be made, I respectfully suggest and for future reference, prior to the final consideration and passage of the Bill. There is not a facility, once the Bill has passed, to have what is essentially a Second Stage speech. I am just attempting to be helpful to all Members, not specifically to Senator Cullinane, because it is obvious that one must become aware of the procedures involved. The Chair will give Senators that latitude prior to the final passage of the Bill, which will be the Fifth Stage. I hope the Senator will accept this in the spirit in which the Chair offers the advice.

I congratulate Senator Bacik for bringing forward this matter and for being to the forefront in ensuring it has reached this stage, which is long overdue. As I said earlier in the debate, this issue was raised with me 19 years ago. It has moved on in most other European countries and I am delighted Senator Bacik has brought it forward and pressed on with it.

I thank the Minister for having his Department take the issue on board. It is important legislation, particularly given the number of people who have come to Ireland from countries with different cultures. There may be issues in regard to the procedures that are accepted in a cultural context in other countries and people from those countries may feel the same culture should apply in the new country to which they move. People are put under extreme pressure and it is important we send out a clear message that these are the laws we have in place. We must ensure it is an offence for a person to try to take another person out of the country. It is important this is a comprehensive Bill, which, when enacted, will send out that clear message.

It is important to acknowledge the work done by the many voluntary organisations through the years in seeking this change in legislation and in following it through all the way and sticking with it. It is unfortunate it has taken so long. A draft Bill was brought to the House in 2001 and it has taken ten years for legislation to finally go through. Perhaps there is an issue in regard to the effective use of the Seanad in dealing with this type of legislation in that we must make sure it is not long-fingered. I thank the Department and Senator Bacik for ensuring we reached this stage and that the legislation will be enacted in the not too distant future.

I join others in welcoming the passage of the Bill. I congratulate Senator Bacik who pioneered the legislation and hope the Bill has a speedy transition through the other House. Some issues with regard to a legal opinion have been raised and I am sure the Minister will consider that with his officials between now and then. I hope the legislation moves quickly and that it does not sit between the Whips in the other House. The officials have said it will move through the Dáil and be enacted very quickly.

I said in my contribution the last day we discussed this issue that it was a shame that when legislation such as this is brought forward in the Houses, the media benches remain empty. It is hypocrisy in the extreme for the media to offer a comment on the future of the Seanad, its workings, what it does or should do when it treats the Seanad with contempt and ignores legislation like this that is initiated and passed here and ignores the leadership being shown here, on this occasion by Senator Bacik. I will bring forward private Members' Bills and other Bills over the coming months and hope the media will choose to engage in the processes which will take place and help to inform the public before they make a decision. Heretofore, the public has been very much led down a specific path by the media. However, that issue is for another day.

I welcome the passing of the legislation and hope it has a quick transition through the other House, notwithstanding the Minister's deliberations on the legal issues which have been raised.

I thank Senator Bacik for promoting this important Bill which sends a loud message about this country's attitude towards the well-being and safety of our citizens and those who wish to become citizens. I thank all other Senators who took part in the debate and my officials who have been extremely helpful to me and other Senators on the issue. I also thank my predecessor, Ms Mary Harney, for her positive attitude towards the Bill.

We will take on board the concerns outlined, but I will not reopen Second Stage of the Bill to address them. Most issues have been addressed comprehensively, and there will be an opportunity to address them again. In particular, I will take on board the lengthy legal opinion from Amnesty International with regard to dual criminality. I take this opportunity to comment on some of the contributions on the manner in which immigrants to this country have been treated in the past and the length of time it takes for a decision to be made on their application for citizenship. I am happy to announce that the Minister for Justice and Equality, Deputy Alan Shatter, is addressing this issue in a serious manner. He has brought proposals to Cabinet, which have been passed, and these will lead to matters being dealt with in a more timely and efficient fashion, to the benefit of all. It does not do us any good, nor does it reflect well upon us, that people who come here seeking asylum are left in limbo for years.

I thank all those who contributed to this debate and thank the Cathaoirleach for his courtesy. I will endeavour to expedite the passage of the Bill.

Question put and agreed to.
Sitting suspended at 12.35 and resumed at 2.30 p.m.