[Mr. Moylan   ]
The professionals can be available regardless of whether they are in private or public hospitals once they are in close proximity. I speak from personal experience. Last year I was taken by ambulance from Tullamore to the public hospital in Dublin where my consultant worked. Within minutes he was available in the private setting. This is why we can have the very best available to us in either public or private once they are in close proximity. The Tánaiste spoke about 1,000 new beds and a saving to the Exchequer of €520 million which can be put to good use elsewhere in the health services. She mentioned 11 new developments of private hospitals. In addition some private developers are looking to provide other units close to general hospitals. Where people must pay for hospital car parking, with the private and public hospitals adjacent to each other that car park can be utilised for both. There were some exceptions such as the private nursing homes, which have done an excellent job in providing step-down facilities. The more beds we have the better will be the care for our patients. The Tánaiste spoke of in excess of 13,000 public beds and 2,500 private beds. Why not add another 1,000 beds to the system? Patients do not worry about being in public or private beds. They want top class care and I know we will be able to give them such care in any new developments that take place. I compliment the Tánaiste and the Health Service Executive on developments taking place in day procedures in our hospitals. A few years ago I went to a major hospital in Buffalo in America. Adjacent to the hospital was a hotel where patients stayed prior to day procedures and then stayed in the hotel for a few days when recuperating. We may need to consider such an option here. There is an opportunity for the private sector to provide such facilities to allow us to maximise the use of the expensive facilities in our general hospitals. Any extra public or private beds are welcome. We now have many more hundreds of thousands of people who because of their financial position can afford private health care cover. In these circumstances why not let the private sector provide the facilities in which they can be treated? I compliment the Tánaiste for her work. Throughout the years we have had problems with the health service. At the same time, great strides have been taken. I support the amendment. It is a good amendment but while I am a little disappointed with the motion, every Member of the House is entitled to table one. I wish the Minister of State well. Ms Terry: I welcome the Minister of State to the House. I support the motion. While we are all interested in providing additional hospital beds and I am supportive of any individual who would like to build a private hospital, our objection is that the Government proposes to provide public land to developers to build such hospitals. These lands are in public ownership and the people have a right to demand that they should be retained in public ownership or should be used to deliver public services. The best use the land could be put to is to provide step down beds, which are badly needed. This, in turn, would release beds in public hospitals. We have spoken ad nauseam in the House about the need for step down beds but the best way to provide them is to use public lands, thus reducing the cost of doing so. By giving land to private developers, we are reducing our capacity to deliver step down beds and to develop our public hospitals. Tomorrow the Government could decide to give a number of acres of public land to a developer to build a private hospital but, in five years or more, if additional land is needed to extend public hospitals, that will not be possible because the Government will have given away the land. I live in Dublin 15 and it is proposed to build a private hospital on the grounds of the James Connolly Memorial Hospital. I was a member of Fingal County Council when we had to take a tough decision to sell some of the hospital’s land for private development. Given that the hospital had a lot of land, we were safe in the knowledge that even if the land in question was sold, there would still be acres available for the future development of the hospital. I am concerned that additional public lands will be sold to people who are only interested in profit. They will not be involved to provide health services to the people because they will have seen an opportunity to make a profit. While there is nothing wrong with that and I support the free market, anyone who sets up a business must source land and pay the going rate for it before making a profit. The State should not part fund the sale of these lands. We must look to the future and how additional beds will be provided. First, they should be provided in hospitals on public land. Beds should also be freed up by ensuring elderly people are not kept in hospital for longer than they should be. Our primary care system should be developed. For how long have we heard about the need to develop such care? What progress has been made? If more general practitioners were available at night and on weekends, more beds would be freed up and this would release the pressure on accident and emergency departments. The Minister needs to do much more to free up beds. The Government is being led by the Progressive Democrats down the privatisation route and we only need to examine the US health service to see how badly people are being served. A two-tier society is being created in the State and those with private health insurance will pay more for services. That is happening in the US where private companies are vying for business but inequities are emerging. That is the route the Government is taking and that represents a bad day’s work. On the question of whether the Government is closer to Berlin than Boston, the State is moving closer to Boston every day and this decision is another step in that direction. Fine Gael is not opposed to private enterprise and to people developing private hospitals if they wish but they should not do so at the expense of the taxpayer. While there is a need for additional hospitals beds, this is not the way to do it. Private developers will get involved to make profits and they will cherry pick sites. They will also cherry pick staff from public hospitals. Eleven new hospitals will compete for staff at a time the health service is experiencing a staff crisis. Staff can be attracted from abroad and while we are happy to have recruited excellent foreign doctors and nurses, that is not sustainable in the long term. In addition, other countries are being deprived of their best medical staff. The Minister did not refer to how these hospitals will be staffed. A private enterprise will set its own pay scales and there could be inequities between the pay of private and public hospital staff. Many issues need to be thought out but the Minister’s proposal to sell public land, even at commercial rates, is not the way to address them and that is our major concern. Mr. J. Walsh: I fully support the amendment to the motion. It is not sensible for us to take a definite position on public versus private hospitals. Many of those who utilise the health services are working class people who pay private health insurance to access the health system. I fully agree that access to health care facilities should be on the basis of medical need rather than on ability to pay and the Minister has stated on a number of occasions that she is extremely anxious that this should be the basis of the health care system. I agree with Senator Moylan that private hospitals will complement public hospitals where they are built on the same site. The facilities and expensive medical equipment in both hospitals will be available to both public and private patients. The health care system must be considered in a new and innovative way and serious attempts are being made to do that. Recently, I visited New Zealand, where health care is also the subject of media attention. Over the past nine years, we have tripled our investment in health care but we have not seen a commensurate increase in outputs from that sector. Senators have remarked on the need to investigate the people who control beds. Unfortunately, an elitist system has developed in the public service and the health care sector. The Tánaiste is right to want to review the contract arrangements for consultants because vested interests must be confronted. Rather than take ideological positions, we must be pragmatic in ensuring that our health care system meets the needs and demands of the public and taxpayers. Mr. Browne: I am more convinced than ever that Fine Gael was correct in tabling this motion. My party is in favour of private sector involvement in the health service and welcomes the provision of 1,000 additional private beds. However, we are asking whether this is the best way forward. The Members opposite are being disingenuous when they accuse us of opposing 1,000 new beds. Of course we welcome these beds, just as we welcome the prospect of competition in the health sector. However, will Members be able look back on this matter in 20 years time and say, “That was a good deal”? We are all aware of the M50 bridge fiasco. It is easy now for us to see that as a bad deal but will we be open to the same charge in respect of health care? The Tánaiste referred to lease arrangements for the construction of private hospitals on public lands. What will happen once these leases are up? Will the State take the land back from the developer? This issue gives rise to uncertainty but we need to ask the questions now. The Comptroller and Auditor General has expressed his unhappiness with previous examples of misspending, such as the Beaumont Hospital carpark. That is why scrutiny and debates such as this are needed. We have to ask ourselves whether the arrangement represents a good deal and, if so, for whom? Will it benefit taxpayers and patients? I became nervous when I heard a Member say that the arrangement won a ringing endorsement from a consultant. I would rather ordinary patients and taxpayers to consider it a great idea than to have it supported by consultants. Senator Terry hit the nail on the head when she said the private sector will take part in the hope of making money. I do not blame the private sector for wanting to make profits but we must ask ourselves whether we are negotiating a bad deal on behalf of the public. The public interest does not refer to consultants and private developers but to taxpayers and patients. It is of great concern that these hospitals will not need licences to open. If it costs €100 million to provide 100 public beds but €42 million for 100 beds, how will the shortfall be met? Patients will end up paying, even though they are already paying for private health insurance and, through their taxes, funding the public hospitals. The Tánaiste made no reference to these increased patient costs.  7 o’clockSenator Moylan referred to the nursing homes repayment scheme. I made a request under the Freedom of Information Act in that regard because the HSE advertised for people to administer the scheme but then re-advertised when it did not receive the applicants it wanted. If questions arise with regard to the ability of the HSE to administer the procurement process, I am not confident it can manage these major projects. I look forward to support from all Members for my party’s motion and hope Senators from Fianna Fáil will vote with their conscience this time. Amendment put. The Seanad divided: Tá, 26; Níl, 20.
| Tá | | Brennan, Michael. | Callanan, Peter. | | Cox, Margaret. | Daly, Brendan. | | Dardis, John. | Dooley, Timmy. | | Fitzgerald, Liam. | Glynn, Camillus. | | Hanafin, John. | Hayes, Maurice. | | Kenneally, Brendan. | Kett, Tony. | | Kitt, Michael P. | Leyden, Terry. | | Lydon, Donal J. | MacSharry, Marc. | | Minihan, John. | Morrissey, Tom. | | Moylan, Pat. | O’Brien, Francis. | | Ormonde, Ann. | Phelan, Kieran. | | Scanlon, Eamon. | Walsh, Jim. | | White, Mary M. | Wilson, Diarmuid. |
| Níl | | Bannon, James. | Bradford, Paul. | | Browne, Fergal. | Burke, Ulick. | | Coghlan, Paul. | Coonan, Noel. | | Cummins, Maurice. | Feighan, Frank. | | Finucane, Michael. | Hayes, Brian. | | McDowell, Derek. | McHugh, Joe. | | Norris, David. | O’Meara, Kathleen. | | Phelan, John. | Quinn, Feargal. | | Ross, Shane. | Ryan, Brendan. | | Terry, Sheila. | Tuffy, Joanna. |
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Cummins and O’Meara. Amendment declared carried. Question, “That the motion, as amended, be agreed to”, put and declared carried.  Business of Seanad.
Mr. Dardis: I propose an amendment to the Order of Business, that we discuss the statements on the recent Supreme Court judgment on statutory rape from now until 8.15 p.m., that speakers have ten minutes each and that they can share their time, that there be one slot per group and that the Minister, if he so desires, be called no later than five minutes before the end of the statements. An Leas-Chathaoirleach: Is that agreed? Agreed. Supreme Court Judgment on Statutory Rape: Statements. An Leas-Chathaoirleach: I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell. Minister for Justice, Equality and Law Reform (Mr. M. McDowell): I acknowledge, in the words of the editorial in this morning’s edition of The Irish Times, that there is “widespread outrage and dismay” at yesterday’s release of a 41 year old man serving a sentence for unlawful carnal knowledge of a 12 year old girl. That release derived from last week’s Supreme Court decision that section 1 of the Criminal Law Amendment Act 1935 was unconstitutional. The section was struck down because it excluded the possibility of an accused person’s invoking the defence of honest mistake as to the age of a person with whom they had sexual intercourse. Over the previous 70 years many hundreds of persons were convicted under this legislative provision. At no time between 1935 and 2006 was a successful challenge mounted to the denial of the right to the honest mistake defence. Cases as celebrated as the X case, which were considered at huge length in our courts on a number of occasions, were the subject of prosecutions under this section. As a barrister who has both prosecuted and defended these cases, at no time did I hear it suggested that there was a constitutional infirmity with that legislation. We can analyse the process of legal review and how the case was handled until the crack of doom but the electorate looks to us as legislators to put the situation right without delay. The electorate now looks to the legislators to correct the situation without delay, a view supported by my soundings of all parties in the Dáil. I believe it is also supported in this House. The Government proposes to pass emergency legislation before the weekend to restore the protection of young persons under 17 years of age through statutory prohibition on the offence of unlawful carnal knowledge. We propose to meet the Supreme Court concerns about admitting arguments as to mistaken belief as to age by accused persons. These can be tested and adjudicated upon by the trial courts. This assembly does not have the right to make retrospective legislation to make right the convictions of persons in custody for this offence. No legislation could have been passed in the past few days, weeks or months to correct the situation of Mr. A or others in that position. Many people believe that there should be no defence of honest mistake. The Ombudsman for Children wrote to me this week, arguing against such a change in the law, but the Supreme Court has decided it must be part of the law. A small number of people in custody are held in prison solely on foot of convictions for unlawful carnal knowledge. The State has argued against their release on the grounds of habeas corpus. One prisoner was released by the High Court but the case is being appealed to the Supreme Court and will be heard on Friday. The appeal is being vigorously pursued, just as the proceedings in this matter were vigorously pursued in the High Court and in the original Supreme Court case. I wish to reject misinformation being suggested at present, namely, that there is no protection for our children from sex predators. This is completely untrue — strong legislation remains in place to protect our children. It is important to reassure the public. The striking down of section 1(1) of the 1935 Act does not leave a gaping hole in our laws. Our criminal code still provides for sexual offences against young people. Rape remains part of our law and carries a life sentence; sexual assault against a young person carries a penalty of 14 years; aggravated sexual assault carries a life sentence penalty; and rape of a young person contrary to section 4 of the 1990 Act carries a life sentence. To get a child drunk and to have sex with that child is an offence that carries a life sentence. While the Government intends to publish legislation in this area, many other offences under criminal law protect our children. I spoke to the Garda Commissioner who confirmed that any offences of the type publicised in the newspapers remain serious sexual offences and will be the subject of vigorous investigation by the Garda Síochána. The second falsehood is that the Government could have introduced emergency legislation to stop sex offenders affected by the Supreme Court judgment from being released. There is not a shred of truth in this suggestion. The High Court originally upheld the State’s defence of the 1935 Act. The Director of Public Prosecutions, the independent prosecutor in Irish law, continued to lay charges for offences under the 1935 Act as late as 12 May. The Dáil was incorrectly informed that the DPP placed a moratorium on these prosecutions at some point in the past. No legislation can retrospectively convict someone and nobody can draft a Bill that will bring about that outcome. Another falsehood that has been continually articulated by some quarters of the media is that the Law Reform Commission warned the State in 1990 that sections of the 1935 Act were unconstitutional. One newspaper wrote that the Law Reform Commission suggested there should be a constitutional referendum to deal with this issue. Nothing could be further from the truth. It stated that Irish law, in respect of the absence of a defence of honest mistake as to age, was unduly harsh and wholly out of step with law in other jurisdictions. Over the past 16 years, this was never interpreted as being unconstitutional. Countless cases have gone unchallenged on this aspect since the Law Reform Commission issued that report in 1990. The great majority of lawyers did not believe that there was a constitutional flaw, otherwise they would have raised it. I have not checked the record of the Seanad but I am unaware of any Member of the Oireachtas tabling an amendment to make Irish law less stern in this regard. Any Member doing so would have faced stern opposition, not least from the viewpoint articulated by the Ombudsman for Children. Nothing could be further from the truth than to state that Governments since 1990 have done nothing with regard to the Law Reform Commission report. A series of Acts dealing with sexual law, homosexuality, child sexual abuse and the constituents of rape were based on the recommendations of the Law Reform Commission. None of the Governments, including that which included Deputies Rabbitte and Kenny, sought to change the law as a result of the report. Stern as the law was, successive Ministers with responsibility for justice judged it more effective than allowing the defence of honest mistake. No one in the Dáil or, I imagine, in the Seanad suggested we should have a less stern law to protect our children from sexual abuse. Five Acts dealing with sexual offences have been passed since the 1990 report, including landmark legislation proposed by Máire Geoghegan-Quinn decriminalising homosexuality and dealing with prostitution. Many Acts have dealt with international agreements on child sexual offences. On no occasion has a Member of the Oireachtas, as far as I know, tabled an amendment to allow the defence of honest mistake. The Law Reform Commission report did not impugn the constitutionality of the Act. The Department of Justice, Equality and Law Reform published a discussion paper on this issue in 1998 and received a significant number of submissions. Subject to correction, 11 dealt with this subject and seven favoured it. There was no great appetite to water down stern laws on the abuse of the defence of honest belief. I wish to say a few words about what has happened since. It has been suggested that somehow if the Minister for Justice, Equality and Law Reform, the Attorney General and the Director of Public Prosecutions had conferred and decided that it was likely or possible that the Supreme Court would decide the case as it did, we would have been able to do something to stop Mr. A from contesting his liberty on foot of it. Nothing could be further from the truth. While it is true that I personally was unaware of the Supreme Court action and had no inkling of it until I heard about the result last Tuesday, even had I seen it happen in the Supreme Court, I could not have introduced legislation in advance its decision, and I would not have done so. First, to publish and introduce legislation while defending in the Supreme Court a case that one has won in the High Court would have been regarded by one’s counsel as pulling the rug out from under him or her entirely. Second, it is not the practice of the Department of Justice, Equality and Law Reform, when it has won in the High Court, to prepare emergency legislation against the contingency that it might lose a case in the Supreme Court, especially when that legislation could not reconvict or keep in custody any person who would be affected by a successful outcome there. That is another myth. However, the fact that it is a myth and sounds credible does not in any way inhibit some people from saying that somehow someone could have stopped this decision. That is not the case. As far as the legislation soon to be put before the Houses of the Oireachtas is concerned, the Government is very clear regarding its intentions. It wishes to introduce a measure that will restore protection for children under the age of 15 by reintroducing an offence of statutory rape for them. Any statutory rape amounts to sexual assault, so the effect of reintroducing that protection will be to increase the maximum sentence for that offence from 14 years, as it is currently, to life in respect of that category. Regarding 15 and 16 year olds, the legislation will reintroduce what in the 1935 Act was described as the protection of an offence by misdemeanour, which made it a lesser punishable offence to have sexual intercourse with a girl in that age category. In that respect, it is the Government’s intention to reform the law and modernise it in accordance with the Law Reform Commission’s suggestion regarding persons in authority and so on. However, it is absolutely wrong to suggest that these measures will by themselves suddenly make wholly illegal something that is wholly legal now. I will deal with the question of the conduct of the court cases. The case heard in the High Court and Supreme Court started off on the basis of counsel being jointly instructed by the Director of Public Prosecutions and the Office of the Attorney General, which is quite usual, since it was a mixed case of criminal law and potential constitutional issues, depending on the interpretation of that law. It was thought, as is frequently the case, that one team of counsel would suffice to represent both interests. That team won the case in the High Court. I emphasise that fact, since very few people are doing so at present. Counsel for the Director of Public Prosecutions, who was in the driving seat in that joint team, won the case in the High Court, after which the case went to the Supreme Court. My second point is that the case was vigorously defended, both in the High Court and in the Supreme Court. The result in the latter case has been a decision by the Supreme Court that section 1(1) of the 1935 Act was not brought forward into law in 1937 owing to the fact that the Legislature in 1935 had shorn it of a defence by expressly removing the defence of honest mistake from the pre-existing law. It did not come forward. Curiously, the same decision of the Supreme Court stated that the offence of sexual assault, then known as indecent assault, was not infirm, since there had not been any specific amendment to remove a defence in that case, and it came forward into the Constitution with the gloss that the defence of reasonable mistake must attach to it. |