Criminal Law (Human Trafficking) (Amendment) Bill 2013Second 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.