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Criminal Law (Human Trafficking) (Amendment) Bill 2013- Second Stage Speech (Dáil) -Speech by Minister for Justice, Equality and Defence Mr. Alan Shatter, T.D.

Criminal Law (Human Trafficking) (Amendment) Bill 2013

Second Stage Speech (Dáil Eireann)

28 June, 2013

Mr. Alan Shatter, T.D.

Minister for Justice, Equality and Defence

A Cheann Comhairle,

I am pleased to bring the Criminal Law (Human Trafficking) (Amendment) Bill

2013 before the House.

Trafficking in human beings is an appalling crime, a serious abuse of human

rights and an affront to the dignity of the human person. It should never

be tolerated. We must use all the tools and resources at our disposal to

prevent and combat human trafficking, prosecute the perpetrators and

protect its victims.

Legislation, of course, is one such tool and a very important element of

our strategy to address the evils of human trafficking. However, this is

but one element of the Government’s ongoing efforts to prevent and combat

this ugly phenomenon.

Ireland has well established, structured and co-ordinated arrangements for

the provision of assistance and support to victims of human trafficking,

including any victims who are particularly vulnerable, such as children.

Persons identified as victims or potential victims of human trafficking are

provided with accommodation, access to health services and financial

support from the State. Child victims or children of victims have access to

education at primary and secondary level. Also, under section 3 of the

Civil Law (Miscellaneous Provisions) Act 2011, victims of human trafficking

may receive free legal advice.

In relation to specific supports for child victims of human trafficking,

under the Childcare Act 1991, such victims are notified to the HSE’s

children and family services. The HSE provides support and protection for

all children in need of State care. This includes provision for the

physical and psycho-social recovery of a child victim of human trafficking.

A full and comprehensive multidisciplinary assessment, overseen by a social

worker, and involving medical, psychological and educational services is

used to determine the most appropriate and safest placement for the child.

Where necessary, a Guardian Ad Litem and / or a dedicated social worker for

the child can be appointed.

All victims of human trafficking have access to a range of services to meet

their needs from their first point of contact with the Garda Síochána. In

cases where they have no subsisting immigration status, they may be granted

an unconditional “recovery and reflection period” for a duration of 60

days. Prior to and during this period, there is no threat of expulsion

from the State. Thereafter, temporary residence can be granted - and

renewed - so long as any criminal investigation or prosecution is ongoing,

with a possibility of seeking a more durable permission on completion of

the investigation and/or prosecution or after three years, whichever is the

lesser period. Provisions to put these administrative immigration

arrangements on a statutory footing are included in the Immigration,

Residence and Protection Bill.

Deputies may be aware that the US State Department recently published its

annual Trafficking in Persons Report – often referred as the TIPS Report.

Ireland has again received the top ranking, Tier 1, in the country reports

section and this reflects our significant ongoing efforts in this area. We

have a well co-ordinated National Action Plan. This spans the period 2009

to 2012 and the plan is currently under review. A new action plan for the

period 2013 to 2016 will be published later this year.

Ireland has also had the benefit of recent country visits from two

international organisations with competence in the field of human

trafficking. The Organisation for Security and Cooperation in Europe (OSCE)

Special Representative and Coordinator for Combating Human Trafficking

visited Ireland in early 2012 and the report of her visit was published in

March this year. The report recognised Ireland’s dynamic anti-trafficking

policy and the development of good practice based on a human rights

approach and good governance. It also complimented Ireland’s comprehensive

institutional system, coordination mechanism, and consultation and

cooperation with non-governmental and international organisations.

In addition, a delegation from the Council of Europe Group of Experts on

Action to Combat Trafficking in Human Beings – GRETA, for short – carried

out a week long visit to Ireland in November. The final report from GRETA

will be available in the coming months.

The recommendations of all three reports will be taken into account in the

process of drafting our new National Action Plan. The views of the State

Department and international organisations and developments at EU level,

along with consultations with State agencies and civil society will

significantly inform the direction and content of the new strategy

document.

Returning to the legislation before the House today, the Criminal Law

(Human Trafficking) (Amendment) Bill 2013 is a short but urgent Bill. 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.

Measures taken in this jurisdiction to address human trafficking, such as

the establishment of dedicated anti-human trafficking units in An Garda

Síochána, 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 , 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.

In addition, 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.

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.

Provisions of the Bill

I will now outline the provisions of the Bill.

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.

Committee Stage amendments

I will be bringing forward two amendments at today’s Committee Stage. The

first of these is an amendment of substance with regard to rules of child

evidence. The second is a consequential amendment.

I will elaborate on the detail at Committee Stage but, in summary, for

human trafficking offences, these amendments increase the upper age

threshold for out-of-court video recording of a complainant’s evidence from

14 to 18 years. They also make provision for video recording the evidence

of child witnesses under 18 years of age. These proposals represent a

significant development of the laws of child evidence in this jurisdiction.

While the scope is limited to human trafficking offences, this extension of

child evidence rules represents the initial phase of plans for a wider

extension across other offences.

In conclusion, this is an important Bill. It is not simply about ensuring

compliance with our international obligations. Were we not a member State

of the EU or a party to international legal instruments in the field of

human trafficking, we would still have a compelling moral duty to protect

vulnerable persons from human trafficking and to ensure a hostile

environment for those who would exploit the weak and vulnerable for profit.

I look forward to hearing the contributions of members during the debate

and I hope the House will support the passage of the Bill.

I commend the Bill to the House.