Second Stage Speech (Seanad)
24 April, 2013
Speech by Minister of State Ms. Kathleen Lynch T.D. on behalf of the Minister for Justice, Equality and Defence, Mr. Alan Shatter, T.D.
A Chathaoirligh,
On behalf of the Minister for Justice, Equality and Defence, Mr. Alan Shatter, T.D. I am pleased to present the Criminal Law (Human Trafficking) (Amendment) Bill 2013 to this House.
This is a short but urgent Bill as its main purpose is to transpose in full the criminal law provisions of an EU directive. The directive on preventing and combating human trafficking and protecting its victims was adopted in April, 2011 and replaced an earlier framework decision of 2002.
Most of the criminal law provisions in the directive have already been transposed by the Criminal Law (Human Trafficking) Act 2008, which implemented the framework decision. For example, the directive establishes mandatory maximum penalties for human trafficking offences. The maximum penalty set down is 5 years, or 10 years if any of a number of specified aggravating circumstances is a factor. Ireland has a high penalty regime for human trafficking offences and, in terms of sanctions, far exceeds the requirements of the directive. In this jurisdiction, a person found guilty of human trafficking for the purposes of sexual exploitation, labour exploitation or exploitation for the removal of human organs is liable to life imprisonment.
Human trafficking for forced begging and criminal activities Article 2, paragraph 3 of the directive provides that, at a minimum, exploitation for the purposes of human trafficking shall include “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs”. This expands the definition of exploitation in the 2002 framework decision to include two new forms of exploitation. The first of these is exploitation for forced begging. The second is exploitation for criminal activities. The Bill extends the scope of our human trafficking legislation to include both. All the other forms of exploitation specified in the directive are already criminalised by the Criminal Law (Human Trafficking) Act 2008.
Offence committed by public official in performance of duties Article 4, paragraph 3 of the EU directive provides that member states shall take the necessary measures to ensure that the fact that a human trafficking offence was committed by a public official in the performance of his or her duties is regarded as an aggravating circumstance. The Bill implements this mandatory requirement.
Our human trafficking legislation contains separate offences of trafficking a child for sexual exploitation, trafficking a child for exploitation other than sexual exploitation and trafficking an adult. In each case, the Bill provides that where the offence is committed by a public official during the performance of his or her duties, this circumstance shall be treated as an aggravating factor when the court is determining the sentence.
Unless a life sentence is being handed down or there are exceptional circumstances justifying its not doing so, the court is required to impose a sentence that is greater than would have been imposed in the absence of this aggravating circumstance.
I should emphasise that these provisions do not arise from concerns about the commission of human trafficking offences by public officials in this jurisdiction. They simply flow from a mandatory provision in the directive. Ireland has well established, structured and co-ordinated arrangements for the provision of assistance and support to victims and alleged victims of human trafficking, including victims who are particularly vulnerable. Many of the measures taken in this jurisdiction to address human trafficking, such as the establishment of dedicated anti-human trafficking units in An Garda Siochana, the HSE and in my own department, have been commended nationally and internationally. Our achievements in preventing and combating human trafficking are due, in large part, to the commitment and hard work of public servants working in a number of departments and agencies.
Forced labour I am availing of the opportunity this Bill presents to define the term “forced labour”, as used in the Criminal Law (Human Trafficking) Act 2008. The 2008 Act criminalises human trafficking for labour exploitation, including subjecting a person to forced labour, but does not define the term “forced labour”.
For the purposes of the Act, the term “trafficks” is broadly defined. For example, the commission of a trafficking offence does not require cross-border – or even internal movement – or illegal entry into the State. It includes recruitment; taking a person into one’s custody, care or charge; and providing the person with accommodation or employment.
In the context of a recent review of the potential of the 2008 Act to combat forced labour per se, the International Labour Organisation (ILO) Committee of Experts on the Application of Conventions and Recommendations was asked for its views on whether Ireland’s human trafficking legislation is sufficiently wide in scope to encompass forced labour as defined in ILO Convention No. 29 of 1930 concerning Forced or Compulsory Labour. Subject to certain specified exceptions, the ILO convention defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily”.
The ILO committee is of the view that the scope of the Criminal Law (Human Trafficking) Act 2008 is broad enough to encompass the main constituent elements of forced labour as defined by ILO Convention No. 29. The committee noted the very broad definition of the word “trafficks” in the Act, which includes providing a person with accommodation or employment. It also noted the numerous means of exploitation, for example, coercion, threats, abduction, force, deception, fraud, abuse of authority, and taking advantage of vulnerability addressed by the legislation. It believes that these provisions combined can be applied, in practice, to cover situations where work is exacted without freely given or informed consent. However, the ILO committee has recommended, in the interest of clarity, that we define the term “forced labour” in line with ILO Convention No. 29 of 1930. I am happy to implement this recommendation and appreciate the assistance of the ILO committee. The proposed definition closely follows the ILO definition and I believe it will bring legal clarity to this issue.
It is important to note that forced labour covers a diverse array of exploitative behaviours ranging from infringement of labour regulations, at one end of the spectrum, to false imprisonment, human trafficking, etc., at the other. Consequently, it is likely that activities constituting forced labour could also be prosecuted under a number of other offences, for example, false imprisonment, blackmail, assault, the coercion offence under the Non-Fatal Offences Against the Person Act 1997, offences under employment law and health and safety legislation, immigration law, etc.
I should add that the Minister for Jobs, Enterprise and Innovation intends to bring forward amendments to employment permits legislation. These amendments will ensure that an employer may not benefit from the illegality of a contract of employment where he or she is found culpable in not ensuring a valid employment permit was in place for the employee concerned. I believe that those proposals will complement this Bill. We have a duty to ensure that vulnerable individuals are not exploited and that a comprehensive approach is taken to tackling the evil of human trafficking.
Committee Stage amendments A small number of issues are still being considered and, where necessary, I propose to deal with these by way of Committee Stage amendments to the Bill, either in this house or in the Dáil.
In particular, article 15.4 of the EU directive requires the Member States to take the necessary measures to ensure that in criminal investigations of human trafficking offences “all interviews with a child victim, or where appropriate, with a child witness, may be video recorded and that such video recorded interviews may be used as evidence in criminal court proceedings, in accordance with the rules under their national law”.
For the purposes of the directive, a child is a person below the age of 18 years. Currently, our criminal evidence legislation makes provision for the use as evidence of video recorded statements of a child victim under 14 years of age. Consequently, there may be gaps in our law, in terms of the directive. For example, it may be necessary to make provision for the video recording of statements of child victims aged between 14 and 18 years.
This issue concerning the rights of child victims and witnesses in criminal investigations and proceedings needs careful consideration. The best interests of children and the rights of defendants to a fair trial in accordance with article 6 of the European Convention on Human Rights are important matters to be examined in this context.
Following consideration of how best to transpose requirements flowing from article 15.4 of the EU directive, amendments to
the Criminal Evidence Act 1992 will be brought forward.
In addition, the Director of Public Prosecutions has been consulted to ascertain whether her office has any difficulties in bringing prosecutions under particular provisions of the Act or foresees any problems in terms of the Bill. If any problems are identified and considered amenable to resolution by legislation, again, amendments will be brought forward.
Provisions of the Bill I will now outline the provisions of the Bill which consists of just four sections.
Section 1 of the Bill substitutes the definitions of “exploitation” and “labour exploitation” in section 1 of the Criminal Law (Human Trafficking) Act 2008 to add forced begging and exploitation of criminal activities to the scope of exploitative conduct criminalised by the 2008 Act.
Recital 11 of the directive states that the expression “exploitation of criminal activities” should be understood as the exploitation of a person to commit, inter alia, pick-pocketing, shop-lifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain. Accordingly, in the Bill, forcing a person to engage in criminal activities, which includes forcing a person to engage in criminal activities outside the State, is defined in these terms. That is, the Bill refers to activity that constitutes an offence and is engaged in for financial gain, or that by implication, is engaged in for financial gain.
Section 1 also inserts two new definitions, namely, “beg” and “forced labour” into section 1 of the 2008 Act.
The term “beg” is given the same meaning as in the Criminal Justice (Public Order) Act 2011. Begging itself is not an offence. The 2011 Act created an offence of harassing, intimidating, assaulting or threatening a person or persons, or obstructing the passage of persons or vehicles, while begging in any place. It also established offences of directing or controlling begging and living off the proceeds of begging. For all these offences, the meaning of begging includes soliciting money or goods from a person or persons other than in accordance with a licence or permit etc. granted by or under an enactment. The same definition can be utilised for the offence of trafficking a person for forced begging.
The definition of “forced labour” is in line with the definition of that term in International Labour Organisation (ILO) Convention No. 29 of 1930 concerning Forced or Compulsory Labour.
Section 2 of the Bill provides that where the offence of trafficking a child for exploitation other than sexual exploitation or the offence of trafficking an adult is committed by a public official during the performance of his or her duties as a public official, that fact shall be treated as an aggravating factor for the purpose of determining sentence. Both these offences were created by the Criminal Law (Human Trafficking) Act 2008.
Unless a life sentence is being imposed or there are exceptional circumstances justifying its not doing so, the court is required to impose a sentence that is greater than would have been imposed in the absence of this aggravating circumstance.
“Public official” is defined as an officer or employee of a public body, the term “public body” to be construed in accordance with the Ethics in Public Office Act 1995.
Section 3 of the Bill mirrors section 2 for the offence of trafficking a child for sexual exploitation. This offence pre-dates the 2008 Act. It originated in the Child Trafficking and Pornography Act 1998.
Finally, section 4 specifies the short title of the Act and provides for its coming into operation one month after its enactment.
In conclusion, I look forward to hearing the contributions of members during this debate and I hope that the House will support the passage of the Bill. I commend this Bill to the House.
Thank you, a Chathaoirligh.