Wednesday, 7 June 2006
Dáil Eireann Debate
Mr. Kenny: I welcome the Taoiseach back from New York. That he was absent when such a critical issue was being discussed last week displayed a serious lapse in judgment and a dereliction of duty, which was not good for the interests of the country. I expect he has a speech that he wants to deliver to the House. Before he does so, it should be noted that any proposal he has will be couched from a Government perspective in portraying him as a born again leader, somebody who has suddenly discovered the errors of the Government’s ways.
It is critical that the people of the country know to what extent information was available or made available to the Attorney General and the Minister for Justice, Equality and Law Reform. Whatever is to be announced by the Taoiseach, it must fundamentally deal with an independent investigation of how the circumstances of the systems failure which occurred came about.
Before the Taoiseach deals with that, I would like him to inform the House of the numbers of cases which may be affected by the Supreme Court decision of 23 May. Mr. A is back in jail, where he belongs, but the rest of them have not gone away. In the Taoiseach’s absence last week, I asked the Tánaiste how many cases were in process under sections 1(1) and 2(1) of the 1935 Act. The Government did not know the answer to the question. I do not know if the Government knows the answer now or if it is not telling us.
The Minister for Justice, Equality and Law Reform stated that he did not know that the CC case had been taken. That is such a serious admission, it requires a very serious investigation of how it could have happened. The Minister for Justice, Equality and Law Reform was well aware of the issues surrounding this case and its relevant area. Last December, he stated in the Sunday World that there was an anomaly in the 1935 Act as boys and girls under 17 were treated differently and that he would take expert legal advice on the matter. He told the Irish Independent that the Criminal Justice Bill 2004 would give the Dáil an opportunity to deal with the issue. He told The Irish Times that he was studying the matter. He told the Seanad that there was no point in writing out a solution on the back of a cigarette packet. However, that is exactly what the Government did in section 5 of Criminal Law (Sexual Offences) Act 2006, which was pointed out in the House last week.
There is a critical need for an independent investigation into how this systems failure occurred. No amount of glossing over that fact will satisfy the people. I have never witnessed such an extent of concern from hundreds of thousands of people, which can only be satisfied if the Taoiseach, however belatedly, sets up an independent investigation into this. We need to know what went wrong and why an issue of this constitutional magnitude was not brought to the attention of the Attorney General, the Minister of Justice, Equality and Law Reform and the Government. What did the Taoiseach and the Cabinet consider over the weekend to sort this out?
The Taoiseach: Last week, the Government acted in an effective and responsible manner and we achieved two things. First, we enacted new legislation to ensure that there would be no gap and, second, we successfully resisted the release of convicted prisoners from jail. These objectives were achieved in a matter of days. There is nothing the Government or this House could have done in advance of the Supreme Court judgment in the CC case to keep convicted criminals in prison. The House did not have any magic wand to do this. Once the Supreme Court struck down section 1(1) of the 1935 Act, it was only in the courts that the issue of the validity of previous convictions would be determined. A clear and effective strategy was put in place by the Attorney General and the Minister for Justice, Equality and Law Reform to resist applications for release by convicted prisoners, and that strategy succeeded. Only one prisoner was released under habeas corpus, but he is now back in jail, which as Deputy Kenny said is his rightful place. Another prisoner, Mr. Simon Murphy, withdrew his habeas corpus application this morning.
While there was a communication issue, it had no effect on the outcome of the Supreme Court decision. The lack of notification to the Minister and the Attorney General as the case proceeded through the courts, in particular when it was appealed to the Supreme Court, did not cause the State to lose the case. Deputy Kenny and everyone else in the House knows that. The case was vigorously defended by the DPP and the Attorney General. It was won in the High Court, but unfortunately we lost the constitutional issue in the Supreme Court. It is for the Supreme Court to make its decisions, and so be it.
When section 1(1) of the 1935 Act was struck down, we were not left without laws to protect our children, as was said last week. There is a host of such laws, including sexual assault, rape, inappropriate circumstances and false imprisonment. The Government would be rightly condemned for fashioning legislation without knowing what the Supreme Court would decide in the CC case. The number of options open to the court, including what was suggested by counsel to the DPP and the Attorney General, to preserve section 1(1) of the 1935 Act, was subject to a defence.
People assume that the Supreme Court’s decision in the CC case was a foregone conclusion, but this is simply not so. There was ample US case law that would have resulted in section 1(1) of the 1935 Act being upheld. The 1935 Act was struck down not because of anything the Government did, but because this was the view of the Supreme Court on what our Constitution required.
As parents, legislators and public representatives, all of us were shocked at the events of last week. As I said here more than a week ago, we were deeply concerned at the hurt, fear and bewilderment caused to the many victims of child sexual abuse and their families. I thank everyone, including the Opposition, for their co-operation in having amending legislation enacted so speedily last Friday. There is a great sense of relief that the Supreme Court appeal against the release of Mr. A has been successful and that he is back in prison where he belongs. The Government recognises that there is a need for a much broader debate on the complex issues that arise for legislators in addressing the area of child protection. We propose to begin that debate through an all-party Oireachtas committee report. I have been looking at those issues and at what people said in the debates last week, and I am sure there are many more points to be made. There has been considerable emphasis on the lack of advance warning for Government members about the impending Supreme Court hearing on the issue of constitutionality. Undoubtedly, there was a communications failure on that issue.
A major issue arose here more than a decade ago about the operations of the Office of the Attorney General. The recommendations of the 1995 report of the review group on the Office of the Attorney General have been implemented by way of a number of protocols and practice directions within that office. The most important of these is the protocol on documentation for advisory counsel, which came into operation in April 2002. The first guideline in that protocol provides that where a matter with which one is dealing is legally significant or novel, politically important, sensitive or financially valuable, one must seek the directions of the Attorney General. Such matters are brought to the attention of the Attorney General by way of written submissions at several stages in the course of litigation so that the Attorney General’s directions can be sought. The current Attorney General has updated these protocols on several occasions. In 2002, he put in place a system whereby he is required to be informed at least ten days in advance of the trial date of any significant case.
Shortly after the CC case was initiated in the High Court in 2002, the correct procedures were followed. The Department of Justice, Equality and Law Reform was sent a copy of the pleadings of 29 November 2002. The Director of Public Prosecutions recommended counsel on 5 December 2002, while the Attorney General took the preliminary step to nominate counsel to provide outside legal expertise to the DPP and the Attorney General. However, the procedures were not followed after that stage. Required submissions in writing were not sent to the Attorney General. Consequently, he was not informed and was not aware of the various stages of the case in the High Court or the Supreme Court appeal.
Therefore, during the period from 5 December 2002 to 23 May 2006, and specifically after the Supreme Court decision of July 2005, he was not informed of the processing of the case, his directions were not sought and no submissions were sent to him. This was a serious breach of those procedures. The Attorney General is satisfied that the only problem in this case was the human error which led to him not being informed in accordance with the existing procedures. These matters can be examined, be they as a result of human error or a systems failure. The counsel appointed by the Attorney General, together with the officials of his office and that of the DPP, defended the case vigorously and efficiently.
To avoid a similar error that might lead to breaches in procedures in the future, the Attorney General is putting in place further procedures. In addition, we are providing for a new independent rapporteur for the protection of children, who will report annually on standards in child protection legislation. I will make available to the House details of these and other initiatives that the Government will put in place. I have also invited a senior official in the Department of Finance to conduct a review of the implementation of existing procedures, with a view to making further changes that may be necessary in the future. I have considered this matter carefully. Following the difficulties of 11 years ago, three officials were asked to draw up and write the procedures. These issues were dealt with by the then Attorney General, Mr. Gleeson, the then Taoiseach, Mr. Bruton, and the then Tánaiste, Mr. Spring. It is now a matter of checking where the procedures failed. Mr. O’Sullivan from the Department of Finance, who is in charge of the relevant section, will carry out this check and will report back to the House in a few weeks. The special rapporteur for the protection of children will deal with these issues in the future — I have outlined the procedures — and the broader issues will be referred to an all-party committee.
Mr. Kenny: That reply does not deal with the issues which need to be dealt with. What the Taoiseach has tried to do by reading that script is to portray his Government as having achieved a victory out of last week’s debacle, which arose from a fundamentally serious systems failure.
I asked the Taoiseach how many cases were affected by sections 1(1) and 2(1) and he did not answer that question. The Tánaiste was not able to answer it last week. What is the answer? Why did the Government not mount the same defence in the CC case which it was able to put together last week? Driven not by conviction but by coercion because of public fury the Government got its best legal brains together to put the case to the Supreme Court. Why was that plan not in place in the first instance in the CC case?
The Taoiseach seemed to indicate that the Attorney General knew in 2002, but somewhere along the line this went wrong. There is the vaguest hint of acceptance of failure but no acceptance of responsibility. The Attorney General answers to the Taoiseach as head of Government. The Taoiseach stated in New York that the Attorney General should have known. Who accepts responsibility? Will the Taoiseach, the Attorney General or the Minister for Justice, Equality and Law Reform accept responsibility? We heard the Minister’s claims last week in the Dáil. It seems the extent of arrogance of some Ministers is exceeded only by the extent of their ignorance on what people feel and think about these issues.
I want to hear the Taoiseach state that he, as Taoiseach, will see to it that an independent, full-scale investigation takes place into what happened. It is not good enough if, as is reported, he expects to get away with appointing an official from the Department of Finance to look into it. On television on Monday night, the Minister for Finance stated if Deputies on this side of the House wanted to find out information on the people’s behalf they could put down a question to the Minister for Finance or any other Minister to be thoroughly investigated.
This is far too serious. If the Taoiseach does nothing else during the relatively short time left to him as head of Government, I strongly suggest in the interests of absolute democracy he sees to it that an independent full-scale investigation is held into this issue so everybody knows why this happened, who knew what and who did not know about it. The Taoiseach will not get away with having an official from the Department of Finance look into so serious an issue.
The Taoiseach stated the discussion on the broader issue of consent and matters surrounding teenage sexuality would be dealt with by an all-party Oireachtas committee report. To what report does this refer? Will the Taoiseach establish an all-party Oireachtas committee? If so, what will be the remit and timescale of that committee? Will it examine this legislation or the broader elements of protection of children?
Before I sit down, I repeat that I want the Taoiseach to state, in the interests of everybody in the country, that he will get to the bottom of this and that there will be an independent investigation to examine what went wrong in this system. Somebody else may be the unfortunate victim of a systems failure such as happened last week. It is in everybody’s interest that the Taoiseach, as head of Government, sees to it that there is absolute clarity and a forensic analysis of what happened. Far from having a vague admission of failure, it is about time somebody on the Government benches accepted responsibility for what is happening.
Regarding the new procedures, it is clear a communication issue arose in the context of the handling of the case. As I pointed out, that did not take from the work done by the offices of the DPP and the Attorney General. Deputy Kenny made a very direct implication and inference that the work should have been better, and asked how come it was better last week than in the previous case. The case had been competently dealt with by the staff of the DPP and the AG. They fought that case to their best ability, winning in the High Court and, admittedly, losing in the Supreme Court.
Legal teams on behalf of the State, both staff and outside counsel, do not win every case. The fact the Attorney General had not been informed as per the procedures drawn up by civil servants in 1995 was not the reason for losing the case. I made that clear several times. It should not be necessary to keep making that point. In any procedural case or protocol on any set of systems in a Department, if a human error is made, a human error is made. I have no interest in jumping all over a person who did not report it. It is fairly clear, however, it would be better if an exact blow by blow account comes out in a report. I spent the past few days examining this and it is very clear what happened. However, let it come out in its own time.
Deputy Kenny stated to me that this must all be independent. However, before the Government changed ten years ago when Deputy Kenny was in Government and Mr. Gleeson was the Attorney General, it was good enough that three officials draw it up. That it should be entirely different now is a political point to which I will not succumb. If it was good enough for three officials to draw it up, just one official is now necessary to check back where the systems failure was. It is fairly clear and it will be fairly easy to see. Let Mr. O’Sullivan make that report for the future.
I will make one point to Deputy Kenny. Nobody is trying to duck anything. What happened last week was a shock to the system and appalling in every way. However, that is what happens. It is the Supreme Court’s right to make a judgment and it did so. It would have been better if it had been communicated as per the procedures. However, it would not have made any difference. I know that and Deputy Kenny knows that. What we now need to do is get it right for the future.
It is clear a communications issue arose in the context of the handling of the case. I have been informed by the Attorney General that he has put in place new procedures — and that he has been examining this for the past few days to try to close off this issue — as follows. The pleadings and submissions in all constitutional actions must be personally approved by the Attorney General. It must be confirmed to the Chief State Solicitor’s office by the director general of the Office of the Attorney General that submissions have been so approved. Rather than it being between the offices, it must be the Attorney General who signs off on it.
Copies of all such pleadings and submissions are to be forwarded by the Office of the Attorney General to the Secretary General of each relevant Department having an interest in such proceedings. In this case, as in many cases, that would have been the Department of Justice, Equality and Law Reform. That did not happen either.
The secretary to the Government is to receive from the Office of the Attorney General briefings every second month on the status and progress of such litigation, including an assessment of its potential impact, if any, on the enforcement of the law. Confirmation in writing is to be given to the Attorney General of notifications to line Departments and the secretary to the Government.
There are to be meetings every second month between officials in the Office of the Attorney General and the DPPs office. The purpose of these meetings is to review and assess the effect, if any, on the general enforcement of the criminal law of any constitutional proceedings. The results of these meetings with the DPP are to be forwarded to any relevant line Department and the secretary to the Government. A memorandum of information for the Government is to be brought quarterly to Government through the Taoiseach to give regular updates on important litigation handled by the DPP, the Office of the Attorney General and their solicitors’ offices.
That creates a heavier work burden. I examined the figures in the past few days. Since taking office, the current Attorney General has personally dealt with more than 4,000 case files. In the same period, the Office of the Attorney General has opened more than 15,000 new cases in addition to the pre-existing files which continue to be managed. Because of the enormous volume of work, officials in the Office of the Attorney General such as the Advisory Counsel and the Parliamentary Counsel deal with many files on his behalf. Clearly, it would not be physically possible for any Attorney General to deal with every case personally. This fact has been recognised by the All-Party Oireachtas Committee on the Constitution in its eighth report just three years ago and also by the constitutional review group chaired by T.K. Whitaker which reported in 1996. Where it is appropriate to consult the Attorney General for his direction, the officials in the Office of the Attorney General are so required to consult. This has been the standard operating practice in the office for many years, particularly since the establishment of the review group in regard to that office.
I have outlined the new mechanisms but Deputy Kenny should note what is clear in the old ones. The 1995 report stated very clearly that the Attorney General should have been briefed on important matters — I have read the section. That was strengthened in 2002 by further protocols and strengthened in the past few years by the Attorney General to the effect that he should be informed of measures ten days in advance. He was not so informed in the case in question. I would love to stand up today and say he was, but I am not dumping on anyone. As the Deputy correctly stated, I have responsibility for the Office of the Attorney General, including all its staff. I will stand over that and, in the best spirit of the 1924 Act, I accept that responsibility, but if it is a case of a mistake by an individual and a mistake in the systems, it must be acknowledged that is what happened. I cannot change that, I can put it up in lights by getting Mr. O’Sullivan’s report, and I will do so. I have asked him to have that available before the end of the Dáil term so we can have another day out on it in the House, if that is what the Deputy wants.
The Taoiseach: I am more interested in what I do for the future. As I outlined and as will be noted from the information I will circulate, what I can do is ensure the existence of procedures designed to make sure this does not happen again. I repeat that the aforementioned circumstances made no difference to the way the case was fought on behalf of the State. I reject the implication that they did because the people from the Office of the Director of Public Prosecutions and the Chief State Solicitor’s office did their utmost. They won the case in the High Court and lost in the Supreme Court. It will not take long for the all-party committee to make a decision.
I read every comment made by Members of the House last week and it seems everyone, including Deputy Kenny, accepted that there were broader issues to be considered, not legal issues but moral issues concerning social mores. It seems fair that responsibility for considering these issues in the round should be given to an all-party committee. I am not putting a time limit on that but, if it is deemed helpful, I will suggest some of the terms of reference on the basis of what we discovered in the past week. This should be considered and I am quite happy to do so.
I cannot change the past but I can report on it and highlight what has happened. I can update the report of 1995, which was prepared by three civil servants, and I can bring forward new procedures, which I am doing today.
The Taoiseach: Deputy Kenny should note that it was clear to all of us as we examined the legislation over the past week that the best way to consider and update it annually according to current standards is to have an independent, special rapporteur for the protection of children. This person would report annually on standards and would consider all the legislation and issues in question. We would have one report presented to the Oireachtas and that, at least, would keep our legislation in accord with the UN Convention on the Rights of the Child, by which we are governed, and bearing in mind the responsibilities of the Office of the Ombudsman for Children. I do not see any other way to proceed. The position would not have to be full time but would involve a legal officer examining the matter on an annual basis. As I outlined, the findings can be presented to the House for evermore. The suggestion to establish such a position is sensible and was made to me to allow for future progress. I hope I have dealt with this question comprehensively.
Mr. Rabbitte: Does the Taoiseach accept that nobody on this side of the House is questioning the professionalism or competence of State counsel, who contested the case in the High Court and the Supreme Court? That is not the issue, the issue is the chaos that ensued from the lack of foreknowledge on the part of the Government, including the Minister for Justice, Equality and Law Reform, and the Attorney General. The Taoiseach is responsible for the appointment of the Attorney General and for answering for the Attorney General in this House.
The Taoiseach implies that some officer in his office is responsible for the chaos that ensued last week in his absence. I ask the Taoiseach about the absence of personal knowledge on the part of the Attorney General. Is it not the case that the rules of the superior courts require the Attorney General to be notified of any constitutional challenge, such as is at issue in this case? I quote a standard authority in respect of order 60 of the rules of the superior court.
It seems crystal clear from this that, under the rules of the superior courts, the Attorney General would have to be notified unless he were a party. The Taoiseach can confirm whether he was a party and whether he was the respondent in this case. Either way, knowledge had to be in his possession. If not, the breakdown is far more serious than the Taoiseach is implying.
Does the Taoiseach accept, in light of his saying the Government acted responsibly and competently last week, that he must inhabit a parallel universe? The chaos that ensued from the inability of the Government to anticipate an adverse finding resulted in a laid-back Cabinet, complacent in the belief that there was no gaping hole and that no prisoner would walk free. The Taoiseach was willing to leave the country and put the Cabinet into recess for ten days. Why did he have to leave the country? Even if he had been afraid to let the Minister of State at the Department of Foreign Affairs, Deputy Conor Lenihan, out on his own, he could have got some other Minister to deputise for him.
In the Taoiseach’s absence, complacency degenerated into panic and there was a divided Cabinet, rent asunder, jettisoning the Minister for Justice, Equality and Law Reform on the altar of his own self-righteousness. The Taoiseach’s deputy leader took over and brutally drove through legislation that he knew, and which the Cabinet must have known, was defective, anomalous and subject to constitutional challenge. It criminalised young boys engaged in consensual sexual activity. The Taoiseach knew all this and absolute chaos reigned in the House. A panic-stricken Government in crisis offered any solution to get it past the weekend.
Regardless of his or her eminence, it is not acceptable to appoint a serving civil servant on behalf of the Government to establish what went so seriously wrong in a case of this gravity. When the Taoiseach quotes what happened in 1994, I remind him that however serious that matter was, it concerned a single file relating to the Duggan case. That which we are discussing concerned tens of thousands of our children. As regards the case relating to the Duggan file, the inquiry was chaired by a Member of the Opposition and Ministers were required to appear in public and give evidence. The Taoiseach wants to shut this down by putting in place a serving civil servant to examine what is wrong. That is not acceptable. If he thinks he can sweep matters under the carpet on that basis and refer what he terms “the wider issues” to an all-party committee, that simply is not good enough.
I heard the Taoiseach read out what I read in the Irish Independent this morning, point by point, in Brian Dowling’s story. Some of it, of course, is not new at all and will have no impact on this situation. Requiring the Attorney General to sign off on constitutional proceedings is already established practice. There is no change. I want to ask the Taoiseach about one reference that has been made in the course of news reportage over the day, to which he did not refer. I refer to the commitment, apparently, reported on “News at One” that he will set up an expert group. I want to ask him about that expert group, its remit and whether he knows who will serve on it. I want to ask him about its relationship to the all-party committee that he believes he can take for granted. Will the expert group report to the all-party committee, the Attorney General, the Taoiseach or the Minister for Justice, Equality and Law Reform?
If the Taoiseach expects to put in place an expert group that will deal with what he calls the wider issues and the social morass, and which will report not to the all-party committee but to a Minister or to himself, then the all-party committee is nothing more than a fig leaf. We need to clarify whether the expert group will report to the all-party committee.
I do not believe that the Taoiseach has dealt with the questions put to him. He thinks there are 20 cases involved. The Supreme Court decision last Friday, as he correctly said, was a relief to us all, although some of us await the detailed judgment with more than usual curiosity. In the current circumstances, is he saying that the only investigation he proposes is to appoint a serving official from the Department of Finance? That is not acceptable. At a minimum, the previous example of three, or if that cannot be agreed on, then one person such as the former Ombudsman, Mr. Kevin Murphy, for example — somebody who is not a serving official — might be put in place to examine what has been a very serious deterioration of reporting arrangements within the Office of the Attorney General.
What would be the remit of the all-party committee? Is it proposed that it would merely examine the statute passed last Friday. I know of no precedent in our history since independence where a Government enacted a statute one week and set up an all-party committee the following week to examine it. What are the all-party committee’s proposed terms of reference? Will it examine last week’s statute or how much wider will be its role? How many statutes will be considered during its examination? For example, can it take as its starting point the Green Paper on sexual offences published in 1998?
We know the terms of reference, approximately, because we need to make haste slowly on these wider issues. We continually asked for a stage one approach to be taken since this crisis broke. However, the Minister was intent on driving through a statute which he knows is defective and which is already the subject of ridicule. The Taoiseach’s Ministers, starting with Deputy Noel Dempsey on Saturday, within 15 hours of the legislation being signed by the President, declared it to be inadequate. We want to know what will be the terms of this prospective all-party inquiry and whether the expert group will report to it rather than to the Taoiseach.
The Taoiseach: Like many Members, I have read numerous suggestions to the effect that we should bring forward for discussion the more substantive related issues, which did not involve not legal points but which are connected to social policy and behavioural matters. Some of this thinking is already being reviewed by the Department of Justice, Equality and Law Reform. The Minister for Justice, Equality and Law Reform has asked his officials to prepare, as a matter of priority, a suggested agenda of the issues to be discussed by the all-party committee. It is not a conclusive list and nobody is taking the committee for granted in organising the independent expert review of existing law as regards sex offenders. Support arrangements for the victims of sex offenders will involve a number of Government bodies and will include the Garda Síochána and the Health Service Executive. The Minister is planning to submit his proposals to Government in this regard. In my view, the all-party committee should deal with these issues and reach agreement on when to report back. I hope these issues, which relate to the future, can be dealt with in a non-partisan way in the House.
One of the issues involved is the taking of video evidence from child victims. Section 17 of the Criminal Justice Act 1992 provides that the video recording of any evidence given by a person under 17 years of age in respect of sexual or violent offences shall be admissible at a trial. There are also issues relating to the committee established by the former Minister for Justice, Equality and Law Reform, Deputy O’Donoghue. It was the view of the current Minister for Justice, Equality and Law Reform that we needed the professional opinion and guidance of the experts in this field. It is important that some of these issues, such as video recording and others, are examined by the HSE, the Garda and others. If the House wishes, I can set down the points and circulate them to the party leaders. It is not, however, a conclusive list. A number of other issues were raised in recent days that have also been included.
As regards what Deputy Rabbitte said at the outset, I appoint all members of the Government and I am well aware of my responsibilities. Deputy Rabbitte will also know that we have been dealing with this issue since the Supreme Court case emerged into the public domain 15 days ago. I dealt with it in this House up to last Tuesday and continued to be in contact with my colleagues. Deputy Rabbitte is entitled to his opinion, with which I differ. Last week, we enacted new legislation to ensure there would be no gap and we successfully resisted the release from jail of convicted prisoners.
I outlined earlier the position of the Attorney General in this matter. He was involved in the preparation of counsel in November-December 2002. He was not — although his office was — updated thereafter. Whatever court procedures are cited, I am providing the factual position. The Attorney General’s office deals with thousands of cases and it did not refer back to him as per the procedures and protocols. That is the position. I am glad Deputy Rabbitte is in no way suggesting the case was not fought through to the end.
I read all of the statements made in the House last week in the heat of debate. I have attended Cabinet meetings, in one form or another, or served on my party’s Front Bench for almost 25 years. It is not the case that when a judgment is due somebody says that if it is goes against us we should introduce legislation to provide for that out of the bottom drawer, or if we win it, we will do this. I remember cases where people put some thought into what might happen in particular cases, but it is not the general procedure — comments to this effect were thrown around here last week.
The legal team arguing and fighting this case and doing its best on it, having won the High Court case, was doing all it could. If the Attorney General had been informed as per the procedures, that would not have made any change to their case. The staff in the DPP’s office and the Attorney General’s office were doing their utmost to win a case. They have hundreds of important cases. If they feel that a case is going badly wrong, perhaps they raise the issue more than in other cases, or perhaps the Attorney General writes to me. That does happen. There is hardly a day I do not get a letter from the Attorney General’s office on some point or case.
I advise Deputy Rabbitte, irrespective of whether he believes me, although I hope he does, that what happened in this case was that the protocol that was in place which should have resulted in the information being sent to the Attorney General, did not result in that happening. As to whether Mr. O’Sullivan is assisted by two more civil servants, I remind Members that three serving civil servants drew up the report ten years ago, and it was a serious issue. Members may think it was only one file which brought about a change of Government at that time. It was not a small issue. They drew up the procedures. Mr. O’Sullivan’s job is to examine those procedures to check where they are faulty. The Attorney General sees this clearly, and I have outlined to the House those procedures. I believe they will be substantive issues.
Deputy Rabbitte raised the point — I do not want to go into the legal arguments — that the legislation that was passed last week is flawed, faulty and subject to constitutional challenge. All legislation we pass is subject to constitutional challenge. If somebody believes he or she has a case, he or she can deal with it. Criticisms have been made about the Act, which Deputy Rabbitte has repeated, namely, that the provisions of it are unfairly discriminatory. It seems to have been forgotten that the criminal sanctions of the 1935 Act applied only to boys. It did not apply to girls. No one ever challenged the constitutionality of it on that basis. It is clear therefore that the 2006 Act has enlarged protection for children rather than reduced it because it also applies to boys and covers a greater number of sexual acts.
The Taoiseach: Perhaps the Deputy would listen. I do not believe any Member of this House would have supported the proposition that we should criminalise unmarried mothers. This would be repulsive law.
The Taoiseach: I ask Deputy Joe Higgins to listen. There are other values and interests that were sought to be protected by section 5 of the Act, aside from ensuring that we did not criminalise unmarried mothers. There were issues of a health concern in regard to young girls, which also need to be addressed. One such issue is that a young girl who has had consensual sexual intercourse may need medical care, or a young girl who has had consensual sexual intercourse may have been exposed to a real and appreciable risk of sexually transmitted diseases. There are several other examples.
The Taoiseach: This was the reason for the inclusion of section 5, namely, that there were a variety of circumstances where after consensual intercourse and before a girl would know if she was pregnant, she would need to disclose that she had engaged in that act for her own medical protection. That was the reason for that section. It is not considered legally that this is in any way flawed nor is that considered to be the case by those who drafted it with the legal basis behind it.
The Taoiseach: I am trying to answer Deputy Rabbitte’s question. I know the Leas-Cheann Comhairle has been lenient with us all as regards time but perhaps at least order could be maintained while I am answering this question. I think I have answered all Deputy Rabbitte’s questions.
Mr. Rabbitte: I point out to the Taoiseach it is not a question of me repeating the arguments about why the statute passed last Friday is of doubtful constitutional validity. We advanced the arguments at the time from these benches. My colleague, Deputy Howlin, set out a number of claims about the legislation that now seem to have been endorsed by various experts. It is not a question of repeating them; they were put at the time and vigorously disputed in this House.
For example, when Deputy Howlin made the point about the Minister abolishing the offence of gross indecency, the Minister for Justice, Equality and Law Reform, the former Minister for Justice, Equality and Law Reform and the Minister for Finance almost leaped across the House at him and said he was wrong and that it now constituted the offence of sexual assault with 14 years’ imprisonment as the sentence. They were wrong. The Minister for Justice, Equality and Law Reform had the good grace to admit since that he was wrong.
There were so many infirmities in the legislation that I would like to ask the Taoiseach if he shares my surprise that the Council of State was not convened to consider whether the Act ought to have been referred to the Supreme Court in the first instance. This was legislation that sought not to criminalise young mothers, as the Taoiseach said, but criminalised young fathers and the Minister for Justice, Equality and Law Reform, in another context, deemed it to be a reason for constitutional unsoundness. How was that not picked up by anybody? One might have thought the Council of State would have been convened to examine it.
The Taoiseach said thousands of these files are going through the Attorney General’s office. How many of them going through the Attorney General’s office relate to constitutional cases? We know there are all those files, like the one for which they are still looking when the Minister, Deputy Martin, was Minister for Health and Children with the associated cost of €1 billion in a refund of charges to old people in nursing homes. The file was last seen in the Minister’s office, it went missing and never reached the Attorney General. We have no idea how that happened and so on.
Mr. Rabbitte: I put it again to the Taoiseach that rule 1 of Order 60 states that “If any question as to the validity of any law, having regard to the provisions of the Constitution, shall arise in any action or matter the party having carriage of the proceedings shall forthwith serve notice upon the Attorney General”. Is the Taoiseach saying that did not happen in this case?
I ask him to respond to the question put to him by Deputy Kenny in respect of the investigation. Who will carry out this investigation? Is the Taoiseach sheltering behind his original announcement that it will be carried out by a serving official in the Department of Finance? He expects us to give allegiance to an all-party committee to examine the wider issue and he wants to sweep what has happened under the carpet and to leave it to a serving official. That is not acceptable to us. We are anxious to play our part and last week we pleaded for an all-party committee to examine the wider issues. We want to participate in that, but we do not want to sweep under the carpet what happened last week. I want clarity on that.
The Taoiseach did not refer to the expert group. Will an expert group be established? Does the Taoiseach know anything about its terms of reference, who will comprise it and whether it will report to the all-party committee?
Mr. Rabbitte: I thank the Leas-Cheann Comhairle. How is the role of the rapporteur distinguished from the existing role of the Ombudsman for Children? Surely this ought to be the task of the Ombudsman for Children who did her job admirably last week. Is the proposal not more window-dressing than reality? Is not the Ombudsman for Children equipped to do this job and why would we need a rapporteur?
Why does the Taoiseach seek to re-open the issue of whether the State ought to have anticipated an adverse finding in the Supreme Court decision on the CC case? Did experts outside this House not establish that the chaos that ensued was due to the absence of that anticipation and foreknowledge? Is it not the case that the apprentice solicitor who wrote the article in the Law Society Gazette said that in the Law Library and legal circles it was widely anticipated that once the defence of honest belief was put to the test it was likely that at a minimum subsection (1) would be struck down? If that was the widespread opinion held in legal circles how come it never reached the Minister for Justice, Equality and Law Reform? That seems puzzling. Had there been such anticipation work could have been done on amending legislation that would have helped to head off much of the chaos of last week.
The Taoiseach: The Government will create a new independent position of special rapporteur for child protection. It is envisaged the independent legal expert will be appointed to that position. The rapporteur’s functions will be to keep under review, and audit, legal developments for the protection of children; to assess what impact, if any, litigation in national and international courts will have on child protection since the introduction of the UN Convention on the Rights of the Child; and to prepare annually a report setting out the results of the previous year’s work to be submitted to the Dáil and Seanad. The special rapporteur will be entitled to consult the Department of Justice, Equality and Law Reform and the Ombudsman for Children on initiatives regarding child protection legislation and on developing protocols to enhance that protection. It is not exclusive of the work of the Ombudsman for Children.
Deputy Rabbitte asked many questions. Let me take a few of them. According to the protocols and recommendations in the 1995 report, the Attorney General should have been informed ten days before that case. He and the DPP appointed the same counsel for the case and for the appeal but for that long period between 29 November 2002 and May 2006, he was not personally informed about it, although his office went ahead with the case. While the protocol for procedure was not observed that did not affect the work done.
The Taoiseach: I am answering Deputy Rabbitte. Perhaps some people writing in legal gazettes or magazines, or on the street, thought the case would go against the Attorney General and the DPP but they had won comprehensively in the High Court. To judge from what I have learnt in the past fortnight that was not their view. There is always that risk but they could not be certain. However they did not go in believing they would be beaten. That was not their state of mind. Even if the Attorney General had reported to us and received that note it would not have made such a difference that we would have had draft legislation.
If Deputy Rabbitte is to be consistent in his own arguments he should recall that earlier he said he will be very interested, as will I, to read the decision of the Supreme Court in last Friday’s case. This is Wednesday. Deputy Rabbitte then reversed that to say we should have been able to pre-empt the case of yesterday two weeks. It is alright that we should have been able to pre-empt the case of yesterday two weeks but Deputy Rabbitte is, correctly, awaiting the judgment of last Friday’s case.
The Taoiseach: Let us be fair. Even if the Attorney General was informed ten days ahead we would not have had draft legislation ready to rush into this House as soon as the judgment was handed down. I have never seen that happen.
The Taoiseach: Deputy Rabbitte asked me about the high level group. There are not two committees. We are talking about an all-party committee that would have available to it the experts to undertake the work on the broad issue.
Unfortunately, like many things in life this has a fairly simple explanation and the House should wait. It will not take Mr. O’Sullivan long to complete his examination. He may want to write some new protocols or recommendations but the Attorney General has done that. There is a human reason why it was not passed from official A to the Attorney General.
The Taoiseach: Why does he not use parliamentary questions which he hardly ever uses? He just uses this time. I am trying to concentrate and answer Deputy Rabbitte’s question and each day Deputy O’Keeffe comes in, never on his own Leader’s time but on Deputy Rabbitte’s time. Would he please not do that?
The Taoiseach: There are numerous cases, I do not know how many, involving serious High Court and Supreme Court challenges. There are not only one or two a year. The volume of work in the High Court and Supreme Court leads to work pressure. In fairness, the Office of the Attorney General does a good job. I will take responsibility for it and for any of its failings, as is my job in this House. It did a good job in this case too, except in a procedural issue which was not the cause of the problem. I will set out the terms of reference for the committee, as Deputy Rabbitte asked me to do. These, however, are tentative so I will do this on the basis of our ideas and forward that to the Deputy.
Mr. Sargent: The Taoiseach might have heard that he nearly did not have a Government to come home to last week. As the controversy brought back memories of the Father Brendan Smyth debacle has the Taoiseach had a chance to reflect on the implications of last week’s events? These continue to reverberate in the media and in the homes of people around the country, on the question of what the Government is doing to protect children. The Minister for Justice, Equality and Law Reform made a dog’s dinner of the legislation in discriminating further against teenage boys who engage in consensual sex. Is the Taoiseach, now that he is still here, taking the opportunity to reflect on further scandalous revelations, namely, that 250 children have disappeared from care in five years? The inequality and discrimination to which I referred is further compounded by the report that accommodation and levels of care for young asylum seekers are not of a standard equal to that provided for other children in State care under the Child Care Act 1991. In terms of a Government response, funding requests to the Department of Health and Children since 2001 remained unanswered, despite repeated submissions.
The Minister for Justice, Equality and Law Reform has made a virtue of inequality. It appears from his statements that he thinks it is good. However, does the Taoiseach not think that he needs to concentrate on the welfare of children? Does he not think the reports from the Children’s Rights Alliance, the Rape Crisis Centre, the Irish Society for the Prevention of Cruelty to Children and the Ombudsman for Children, which are all scathing in terms of their assessment of the Government’s record in protecting children, have been compounded by the response to the legislation introduced last week and the flaw in the constitutional assessment of the legislation that already existed?
Does the Taoiseach not think that the sexual abuse and violence on children report of 2001 indicates that we need to be concerned not only about Mr. A, but about the thousands of people guilty of sex abuse at large in Irish society? Will there be an assessment of what the Government needs to do? Has the Taoiseach met the Minister for Justice, Equality and Law Reform since his return and what contact has he had with him? Apart from setting up an all-party committee, basically an attempt at parking the issue, what further plan has the Taoiseach to deal with the issue?
Will the Taoiseach address the lack of confidence the public now has in the Minister for Justice, Equality and Law Reform, Deputy McDowell? Will he compare the situation with, for example, what happened to Charles Clarke in the UK? He resigned, even though officials in the Home Office admitted they did not inform him of information he should have had. He resigned on principle given that he had political responsibility. Is there any room in the Government for accountability?
Following last Friday’s rushing of legislation through the House, does the Taoiseach recognise that the Minister now sees problems with it or that the enshrining of gender discrimination further in law will be challenged by the European Court of Human Rights? Given there was not time last Friday to address the amendments helpfully suggested by the Opposition, will the Taoiseach take on board the amendment from my colleague and justice spokesperson, Deputy Cuffe, which would be a holding exercise that would ensure there was no discrimination by way of gender in the legislation? That amendment, which replaces the discriminating section 5 with a lesser offence that would apply to both boys and girls would at least ensure the legislation would not end up in court with a further constitutional challenge, which is very likely. Will the Taoiseach agree to that? Is he amenable to amending the law immediately to prevent a further debacle and escalation of concern among the householders and parents of this country who are in a very worried state at the way the Government has essentially rushed to protect itself, rather than to protect children?
Will the all-party committee focus on this issue or will the Taoiseach bring the terms of reference, about which he spoke in terms of the Attorney General, to the House immediately so that we can see what is needed? What is the timeframe for the all-party committee to report given the urgency of these matters and the constitutional risk that hangs over the botched legislation the Government brought in last Friday?
The Taoiseach: It is not the view of the Government or the extensive number of legal advisers to whom we have talked that this is botched legislation. The legislation does what it was primarily intended to do. It restores offences of statutory rape in a way that respects the judgment of the Supreme Court, and that is what it set out to do. While people may wish to see further measures or a different emphasis on the legislation, the Bill satisfies the essential criteria, addressing the Supreme Court concerns and gathering the broad support essential for its quick passage.
It was acknowledged in the House and by the Minister that the legislation is a stop-gap measure. It is intended to have a more wide-ranging debate on the whole area through the all-party committee. I will set out some of the suggestions for the all-party committee, but I am sure they will not be the only views and people will have an opportunity to put issues forward.
I set out earlier some of the reasons the Bill was drafted as it was with regard to the issue of discrimination. The legal view can be examined over the next few weeks. The reason this view was adopted is that our constitutional laws do not prohibit discrimination per se and legislators are entitled to take account of differences in situations in enacting our laws. It is only if one acts irrationally and thus without any reasonable basis that our courts will strike down such laws. Therefore, it is not considered likely this Act will be struck down. The view is that we have acted properly in enacting it and are motivated by nothing other than a desire to protect young boys and girls.
The Deputy made further points about children in general and legislation. I set up the Office of the Minister for Children to bring greater coherence of policy in this area. That is seen as an advanced step. We announced the bringing together of various functions in forming that office, functions of the Department of Health and Children, child welfare, protection policy and the National Children’s Office. We set out a five-year strategy for children and provided resources to deal with that. We set up an investment programme to build on the success of the equal opportunities programme and made changes on unpaid maternity leave, child care supplement, child minding relief, child benefit, foster care allowances and assistance for homeless children. The Deputy should take these into account and acknowledge the substantive work the Government has done in the area of children.
Mr. Sargent: It is interesting to hear the Taoiseach talk of a five-year plan with regard to children. The Children Act was a 2001 Act and therefore the five years are up. Judgment calls, and the judgment being made is not great. I am referring not to myself but to the groups which would like their voices heard here, and they say the Government has not acted to protect children sufficiently.
What is the timeframe for the report of the all-party committee? Given the rushed manner of the legislation, was the Taoiseach surprised that the Council of State was not called to assess its constitutionality? Would he welcome the Council of State being called together and the President having an input into the testing of the constitutionality of the legislation before it happens in the unexpected way I predict will happen?
The issue of inequality is one over which the Taoiseach will continue to stand with regard to this legislation. He says discrimination is permissible in certain cases. Does he not accept that an opportunity exists to ensure there is no discrimination on this matter and that it would be preferable to take the route of not discriminating against one gender or another? Given the Government is so committed to inequality in terms of what the Minister for Justice, Equality and Law Reform has so proudly espoused, I know it will take a change of Government to rule out inequality in general. However, with regard to this legislation, the Government could end the inequality overnight just as it enacted the legislation overnight. What is the timeframe for the all-party committee? We need to get our amendment through to ensure the discrimination is removed so that we will not face another constitutional challenge on the basis of the discrimination so patent in the legislation.
An Leas-Cheann Comhairle: Before I call the Taoiseach to reply, I must point out that the Office of the President should not be referred to in the House. It is a long-standing rule of the Dáil that the President should be outside and above the debates in this House.
The Taoiseach: The view of the Minister for Justice, Equality and Law Reform is that we should establish an all-party committee fairly quickly, make progress in that regard over the coming months and be in a position to make changes that are necessary in the autumn. I will send the terms of reference to the party leaders for their perusal as soon as they have been cleared by the Government.
The Taoiseach: We will see what we will do on those issues. As I have said, the equal opportunities investment plan is an enormously costly plan that has been funded as part of an attempt to assist, and it is hugely helpful. The Deputy will acknowledge the changes we have made. For example, I have put on the record a number of points relating to the establishment of an office of special rapporteur for child protection. These important points are not seen in any way as glossing over the problems, but as being of huge benefit for the future. This matter will be kept under review now and into the future. There will be an audit of legal developments for the protection of children and an assessment of the impact, if any, that litigation in national and international courts will have on child protection. A report setting out the results of the previous year’s work will be prepared annually. As I said, the report will be submitted to the Dáil and Seanad for consideration and debate. The special rapporteur will be entitled to consult Departments and the Ombudsman for Children about child protection initiatives. The points I have made are substantial and important.
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