Wednesday, 24th April 2013
I welcome the Minister of State to the House. The Bill will transpose some important provisions of the EU anti-trafficking directive into domestic legislation, which is very much welcome. I thank the Minister of State for outlining the Bill’s contents.
I welcome the inclusion of a definition of “forced labour” based on the International Labour Organisation Convention No. 29 of 1930 concerning forced or compulsory labour. I called for a clear definition of “forced labour” last November in the context of the shocking exploitation and forced labour of Muhammad Younis when we debated in the House Senator Quinn’s Employment Permits (Amendment) Bill 2012. The Migrants Rights Centre of Ireland, MRCI, has called for a definition of “forced labour” in domestic law for many years. I welcome members of the centre to the House. They are present in the Visitors Gallery and they are accompanied by a number of survivors of forced labour in Ireland. They are the human faces of the laws we debate and their presence instills in me a sense of my responsibility and our collective responsibility to ensure the law protecting victims of forced labour is as robust as possible. I seek an assurance that the definition of “forced labour”, as intended by the ILO convention and as understood in international jurisprudence with respect to offering oneself voluntarily, means fully informed and free consent throughout the worker’s service period. It is my understanding that in a number of forced labour cases dealt with by the MRCI, the victim could be said to have offered himself or herself voluntarily and the features defining forced labour came into play thereafter. That is why I stress the need for an assurance from the Minister of State about that understanding of the definition.
I also thank the Immigration Council of Ireland, ICI, which helped me to examine a number of the gaps in the legislation. A number of outstanding issues need to be addressed to give full effect to the EU directive. These do not necessarily need to be dealt with through this Bill or primary legislation but I reserve my right to table amendments on Committee Stage because I received a copy of the Bill only last week and I am still trying to work my way through it. Many of the issues I would like addressed can be dealt with through policy or other primary legislation but they are covered by the EU directive and I would like us to uphold it in full.
The directive specifically highlights the gender dimension of the crime and requires countries to adopt a gender specific perspective in provision of support and assistance to victims and in prevention work but this seems to have been ignored. We need to provide gender neutral accommodation and services in direct provision centres, for example.
My second concern also relates to direct provision and I have pursued this issued via Adjournment matters, as the Minister of State will be aware. I feel at times, including yesterday, that inappropriate road blocks are put in my way but I will not be deterred. In addition to the overall gender specific approach to service and assistance contained in article 1, the directive also covers appropriate and safe accommodation and assistance. The current policy to secure accommodation and material assistance through the system of direct provision is controversial. Senator Bradford has raised several issues in this regard and it is perceived as inappropriate by many. We need to address these issues. I have asked for a debate on directive provision in the House.
Third, it is unclear what is the policy on provision of support and assistance to victims following criminal proceedings. Specifying a commitment in that regard would be in line with the relevant provision of the directive. Fourth, can the issue of victims of trafficking with special needs be addressed through policy or additional primary legislation? The EU directive obliges states “To attend to victims with special needs where those needs derive from pregnancy, health issues, disability, mental disorder or a serious form of psychological, physical or sexual violence they have suffered”.
In that regard, it is noted that the existing administrative arrangements only provide for the granting of a temporary resident permit on condition of co-operation with the authorities. Considerations of any of the listed special needs that I have outlined are absent, so I would like to know how we will uphold that part of the EU directive.
The identification of victims of trafficking is currently extended to a limited category of victims and appears to be an opaque and unlimited process. Even though the authorised personnel are trained and familiar with international guidelines for the identification of victims, no structure has been agreed for this process, including the number of interviews, minimum criteria and time limits, to give effect to the directive’s provisions for early identification. This is in addition to the problem that the vast number of victims remain ineligible for the identification procedure.
The EU directive obliges the State to ensure that victims have access to counselling without delay and, in accordance with the role of victims in the criminal justice system, to legal representation, including for the purpose of compensation. Victims in Ireland currently have access to legal counselling provided by the legal aid board by referral from the Garda National Immigration Bureau. However, access to legal representation has to be considered in full, in my opinion. For example, not all victims of trafficking would meet the eligibility criteria for legal aid in the State, including for the purposes of seeking compensation. It is worth exploring and eliminating any differences in eligibility that arise from the fact that the person is not formally identified as a victim of human trafficking or the victim is not habitually resident.
Article 19 of the EU directive provides for the establishment of a national rapporteur or an equivalent mechanism that will be in charge of statistical data, extraction of trends and evaluation of the adequacy of national measures against trafficking human beings. Currently, the anti-human trafficking unit collates statistics and presents trends in this crime. However, the element of independent evaluation cannot be provided by this unit because it is at the centre of decisions on measures and their implementation. Therefore, when a decision on such a rapporteur body is being taken, there should be close co-operation with civil society organisations to ensure we are compliant and fully in line with the directive.
Although they are not defined as workers under our current labour laws, but given the specific vulnerability of their class to exploitation, forced labour and human trafficking, I wish to flag my concern about the unregulated and scrutinising of the au pair industry. The vast majority of parents and au pairs have a really positive experience from this short-term cultural exchange with some child-minding duties. I am not talking about that area specifically but given the crisis in affordable access to child care, we have seen increased instances of au pairs being taken on as child-minders. To all intents and purposes, they have been exploited as domestic workers. I have met some of those au pairs and it is clear that their employment aspects need to be regulated.
We also need to examine the child protection concerns and the vetting of au pairs. There is no facility for parents to have an au pair vetted, unless they go through an agency, so perhaps we need to ensure that this is done through agencies. In addition, no guidance is being given by the State to parents and au pairs about their expectations. For example, how does an au pair, who is new to this country, raise concerns about child protection and alert the authorities here? I have heard cases involving au pairs whose documentation has been taken from them and they are not given access to the public. While I know it is outside this Bill’s remit because it is not a labour issue, the problem is that the au pair problem falls between so many gaps. I will raise the matter with the Minister for Children and Youth Affairs, Deputy Fitzgerald, and the Minister for Jobs, Enterprise and Innovation, Deputy Bruton.
Despite raising these issues, I fully support the Bill. However, I want the legislation to be fully in line with the EU anti-trafficking directive. I hope the Minister of State can assure me that the matters I have referred to will be addressed through policy or additional legislation.