I thank the Deputies present for their contributions.
Amendment No. 2 relates to the definition of who might be prosecuted for carrying out or attempting to carry out an act of female genital mutilation in a place other than this State. The current text of section 4(1)(c) is a standard format in Irish criminal law for applying extraterritorial jurisdiction to specific offences, and is used in other statutes such as section 8(1)(c) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. If the intention of Deputy Naughten is to encompass any non-Irish national who currently has a valid permission to reside in this State, that is already provided for in the current wording, and the proposed text is unnecessary. I do not, therefore, propose to accept this amendment.
The proposal in amendment No. 3 is to remove the requirement for dual criminality from this Bill. As the Deputies might be aware from previous Oireachtas debates on this Bill, this requirement has been included to conform to constitutional and international law requirements. It was inserted into the Bill on the advice of the Office of the Attorney General. This issue has been considered in some detail by my officials and by the Office of the Attorney General, and following a further review and the seeking of additional advice from the Attorney General, the current provision of dual criminality stands.
Only in exceptional cases are extraterritorial offences provided for in criminal law without a dual criminality requirement. Under international law, only offences jus cogens against the norms of the world, such as piracy, war crimes and terrorist acts, carry universal jurisdiction. At present, FGM, when carried out privately, is not an international crime, but general principles of international law are developing all the time, and therefore the view that FGM is not an international crime is open to change depending on developments in the area. In addition, Cosc, the national office for the prevention of domestic, sexual and gender-based violence, is currently examining the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. Under the terms of this convention, the practice of FGM is condemned, and it provides that there should not be a dual criminality requirement. The removal of dual criminality from FGM legislation could be revisited if and when Ireland ratifies the convention, as pointed out by Deputy Ó Caoláin.
It is important to point out that people who are Irish citizens or residents will already be criminalised under section 3 of this Bill for removing a girl from the State for the purpose of having FGM carried out, which mitigates the rationale for the dual criminality clause. I do not, therefore, propose to accept this amendment.
Amendments Nos. 5 and 7 are proposed by Deputy Naughten. Amendment No. 5 would require the Minister for Justice and Equality to be informed if a person is not guilty of an offence of FGM because that offence was committed outside the State in a jurisdiction in which FGM is not criminally prohibited and, under paragraph (b), would require the Minister to remove all residency permissions from any such person who is not an Irish citizen immediately upon receiving this information. Paragraph (a) of the Deputy’s amendment does not specify who is to inform the Minister that a person is not guilty or, more importantly, who is to make that judgment about the person. The term “not guilty” would imply that the person in question has been charged, brought to trial and found not guilty by a court on the basis that extra-territorial jurisdiction does not apply. It would be extremely problematic to proceed with a withdrawal of residence permission based on a finding of innocence by a court.
Paragraph (b) is problematic in its own right. The withdrawal of residency rights from persons who are not citizens would apply to both EU and non-EEA nationals. The removal of free movement rights from EU citizens is a very serious matter and would be extremely difficult, if not impossible, on the basis of an action that is not an offence or a finding of innocence. Furthermore, such an action would have to be subject to due process, which is not provided for in the proposed amendment. The Minister for Justice and Equality does not remove residency rights from Irish non-nationals. When it is judged that a foreign national should be removed from the State, he or she is subject to the process provided for in section 3 of the Immigration Act 1999. This is currently the only manner in which foreign nationals can be forcibly removed from the State. In the meantime, it should be noted that section 3(2)(b) of the Immigration Act 1999 permits the Minister to make a deportation order in respect of a person whose deportation has been recommended by a court in the State, before which the person has been indicted for or charged with any crime or offence. The same observations apply to amendment No. 7. Therefore, I ask the Deputies not to support these amendments.