Ceisteanna — Questions - Constitutional Referenda.

Wednesday, 10 February 2010

Dáil Eireann Debate
Vol. 701 No. 4

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  1.  Deputy Enda Kenny  Information on Enda Kenny  Zoom on Enda Kenny   asked the Taoiseach  Information on Brian Cowen  Zoom on Brian Cowen   the constitutional referenda he plans to hold during 2010; and if he will make a statement on the matter. [48380/09]

  2.  Deputy Caoimhghín Ó Caoláin  Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin   asked the Taoiseach  Information on Brian Cowen  Zoom on Brian Cowen   his plans to initiate any referendum to amend the Constitution in 2010; and if he will make a statement on the matter. [48424/09]

  3.  Deputy Eamon Gilmore  Information on Eamon Gilmore  Zoom on Eamon Gilmore   asked the Taoiseach  Information on Brian Cowen  Zoom on Brian Cowen   his plans for constitutional referenda during 2010; and if he will make a statement on the matter. [3174/10]

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I propose to take Questions Nos. 1 to 3, inclusive, together.

The renewed programme for Government envisages the following potential referenda during the lifetime of the current Dáil, subject, of course, to appropriate Oireachtas approval: to consider children’s rights, based on the work of the Joint Committee on the Constitutional Amendment on Children; to consider amending Article 41.2 of the Constitution, to broaden the reference to the role of women in the home to one which recognises the role of the parent in the home; and to consider the establishment of a court of civil appeal.

Deputy Enda Kenny: Information on Enda Kenny  Zoom on Enda Kenny  The Taoiseach mentioned the programme contained three potential referenda, one on the role of women, one on children’s rights and one on the court of appeal. We could support all of these referenda. Has the Government any firm proposals for a date for these referenda? If so, is it proposed to hold all three together?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  No. There have been two interim reports on the work of the Joint Committee on the Constitutional Amendment on Children, which was established in November 2007 and is chaired by Deputy Mary O’Rourke. The first interim report, which recommended the Government establish a statutory scheme for Garda vetting for the regulation of the collation, exchange and deployment of hard and soft information for the purpose of child protection and to require that all persons working with children are subject to vetting, was published on 1 September 2008. The Office of the Minister for Children and Youth Affairs is working in conjunction with the Department of Justice, Equality and Law Reform on the preparation of legislation which will provide for the establishment of a national vetting bureau for the collection and exchange of information, both hard and soft, relating to the endangerment, sexual [881]exploitation or sexual abuse or risk thereof to children. The legislation will provide a statutory basis for the vetting of persons to identify those who are unsuitable to work with children and vulnerable adults.

The second interim report, on absolute or strict liability in respect of sexual offences against or in connection with children, was published on 7 May 2009. It contains 39 recommendations, including some which are a restatement of the recommendations of the 2006 report of the joint committee on child protection in respect of criminal justice procedures. The Minister for Justice, Equality and Law Reform, on behalf of the Minister of State with responsibility for children and youth affairs, obtained Government approval on 8 December 2009 to prepare the general scheme of a Bill implementing the recommendations, including the recommendations of the majority of members where there was no unanimity. The Bill will deal with the issues of absolute and strict liability that arose in the context of the Supreme Court judgment in the CC case. The third and final report of the joint committee will deal with the rights of children and family law aspects of the amendment. I understand this is due to be launched on 16 February next.

Deputy Enda Kenny: Information on Enda Kenny  Zoom on Enda Kenny  I have listened to the Taoiseach read his brief. Deputy Olwyn Enright in 2003 put forward the view that legislation should be introduced for soft information. The committee recommended in September 2008 that no referendum was necessary but that legislation should be published. It was to be published in December 2008, which has now become, obviously, February 2010. What is the position in respect of legislation being produced to give effect to the committee’s recommendation of September 2008? When are we likely to have approval of the heads of that legislation and when is it likely to be published?

Second, the Taoiseach is aware it is now taking 36 months to get a case into the Supreme Court. The establishment of a court of appeal by way of referendum is an absolute necessity which I support. What is the position on preparatory work by the Government for accepting the Supreme Court recommendation in this regard? Has the Government fixed a date for these matters to be dealt with?

Finally, what is the position on the Bill on judicial remuneration and when is it to be published?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  With regard to the first interim report which was issued on 1 September 2008, as the Deputy said, the office of the Minister of State with responsibility for children and youth affairs, in conjunction with the Department of Justice, Equality and Law Reform, is preparing the heads of the Bill for submission to Government at the earliest date. The preparation of legislation on soft information is a priority for the Minister of State with responsibility for children and youth affairs.

On the issue of judicial salaries, provision has been made in the Finance Bill published last week to facilitate voluntary payments of the levy under this measure. Members of the Judiciary will be able to make payments equating to the pension-related deductions appropriate for their salary levels, as set out in the Financial Emergency Measures in the Public Interest Act 2009. The Minister for Finance has also indicated that since the review body would have considered a reduction of judicial salaries, he has decided there will be no increase in judges’ pay during the lifetime of the Government.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  It would be great if the Taoiseach answered the questions rather than reading a brief he clearly knows nothing about.

Deputy Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  Does the Taoiseach acknowledge that a referendum to strengthen the rights of children in the Constitution is necessary? He is aware that an all-party [882]Oireachtas committee has been addressing this matter for some considerable time and that the earlier reports in regard to soft information and the second report covering a number of areas, including the age of consent, will now be followed by the third and final report in regard to children’s rights. In fact, the 62nd meeting of that committee is scheduled for later today.

Will the Taoiseach undertake to the House to join with all of the parties represented in this House in an all-party committed effort to ensure that a referendum based on the recommendations of the committee is put before the people, and that we present an amendment to the Constitution in regard to Article 42 that will secure the support of all the people? Will he approach this project on a cross-party and all-party basis? Will he, as a first step, consider meeting the leaders of all of the political parties in the House represented on the committee in order to set in train the united approach which I believe will be necessary in order to help garner the support necessary to ensure that this important and, in my view, essential amendment to the Constitution is successfully steered through a referendum? Will he undertake to give a commitment that this referendum will take place this year? Can we have an indication of the Taoiseach’s intent in that regard and on the prospect of a referendum before the end of 2010?

On the matter of Article 42 of the Constitution, the committee only addressed the first sections of Article 42 but there are other aspects of Article 42 that would need further address. I refer specifically to the referencing to education. Given there is now widespread debate on the issue of the control of schools and the need for pluralism in our schools, the role of the churches and religions, the role of the State and the need for local and democratic control of our schools, particularly in regard to primary education, does the Taoiseach agree that a structured debate in regard to all of that needs to take place? Would he be willing to indicate to the House that such an approach and examination of the remaining aspects of Article 42 is necessary in the current reality of Irish life, given that it broadly reflects 1930s Ireland and needs to be updated? Will he undertake to the House to commence that process immediately?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I have indicated in my primary reply where we believe the possibility of referenda would be considered, namely, in the area of children’s rights in the context of Article 41.2 of the Constitution in order to broaden the reference to the role of women in the home to one which recognises the role of the parent in the home, and then to consider the establishment of a court of civil appeal. Those are the areas where the Government believes this should be considered.

With regard to the question on children’s rights, the first interim report brought forward a legislative proposal which is being prepared. The second interim report, which was about trying to find a consensus on this issue, failed to find a consensus. One view in the second interim report, held by some members of the committee, favoured a constitutional amendment to permit legislation to be enacted that would remove the possibility of relying on any defence of mistake as to age in two circumstances, namely, where an adult has engaged in a sexual act with a child below a certain age, and where an adult in a position of authority has engaged in a sexual act with any child, that is, a person below the age of 18. There is, however, a contrary position that is also referred to by the committee — the majority view, as I understand it. In part, it is based on the view that the Oireachtas should pursue whatever legislative options might be available to put in place a stricter statutory regime that would also pass constitutional muster before proceeding with a proposal to amend the Constitution.

Subsequently, the Minister for Justice, Equality and Law Reform, on behalf of the Minister of State with responsibility for children and youth affairs, obtained Government approval on 8 December last to prepare the general scheme of a Bill implementing the recommendations, [883]including the recommendations of the majority of members where there was no unanimity of the second interim report. That recommendation, where there is a majority rather than a consensus, is about proceeding by way of legislation rather than by constitutional amendment in the first instance.

Therefore, the position has emerged as a result of these detailed deliberations by the committee and the Government has indicated how it intends to proceed. As I understand it, a third report is due on 18 February next which deals with the rights of children and family law aspects of any prospective amendment as to whether a constitutional amendment would be provided for. I await the report before I make any comment on that.

  11 o’clock

Deputy Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin  Zoom on Caoimhghín Ó Caoláin  The Taoiseach will be aware that the Minister of State with responsibility for children and youth affairs has been an active participant in the deliberations of the committee. I understand a paper reflective of the Fianna Fáil Party’s view in this area was presented to the committee during the course of its work. Not having had expectation as a participant in the committee’s work regarding the early reports of address through the Constitution, I again ask if the Taoiseach will indicate a willingness to take on board the committee’s recommendations which unanimously commend address of the children’s rights issues by way of amendment to the Constitution, specifically, Article 42. Is the Taoiseach in a position to indicate the Government’s disposition towards this important change which has the support of all parties to the committee? I have gone further and asked, in relation to the remaining sections of that article of the Constitution, whether the Taoiseach is willing to undertake to accommodate a proper all-inclusive address of those sections that specify the relationship in terms of education. The Taoiseach will be aware, as we all are, that this is a major issue of discourse and debate at this point. It is imperative there is political leadership in this regard to ensure what is stated in the Constitution reflects the reality of the Irish situation today. I urge the Taoiseach to consider that course and to provide leadership in this regard.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  As I stated earlier, the Government will, following publication and presentation of the report to the relevant Minister and Government, consider the report. In respect of the two previous reports, the recommendations of which we have acted upon, if the committee can find a consensus based on its due and full consideration of the issues relating to the third report, the Government will take account of those recommendations. I cannot give an undertaking until I know what is being proposed. I believe that is the sensible way to proceed, particularly as publication of the report is imminent. When the report has been published and considered, as in the case of the previous two reports which also have been acted upon, the Government will take the opportunity to consider it, following which I will confirm the Government’s intentions.

As regards the other aspects, and in reply to the question asked, it is not envisaged that during the lifetime of the current Dáil we will consider issues other than those referred to. A structured dialogue on education, future management of schools, how the ethos of schools is to be respected and so on is about to commence.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The Taoiseach stated that there are three constitutional amendments in the pipeline, one of which is the constitutional amendment in respect of the protection of children, the details, content and nature of which will be decided following publication of the committee’s third report. The second amendment relates to the establishment of a court of civil appeal and the third will seek to broaden the reference to the role of women in the home to one of the role of parents in the home. Will any of these referenda be held in 2010? The Taoiseach told the House yesterday that it is intended there will be an election for a Lord [884]Mayor of Dublin in 2010. This means the best part of 30% of the electorate will go to the polls that day anyway. There are two by-elections imminent which cannot be postponed forever and in respect of which, presumably, people will also go to the polls. Will the opportunity of people going to the polls in 2010 be availed of to hold one or other or, perhaps, all of these referenda?

As regards the role of women and parents in the home, when does the Taoiseach expect the legislation to provide for the wording of that referendum to be presented to the House, given the specific promise in this regard in the renewed programme for Government? The programme for Government also refers to a fourth issue, namely, the establishment of an independent electoral commission to consider the extension of the franchise for presidential elections to the Irish abroad, to examine and make recommendations for changes in the electoral system for Dáil and Seanad elections, to consider changes in respect of European elections and to make recommendations on the possibility of extending the franchise for local elections to those aged 16 years or over. When will the independent electoral commission be established to consider these matters?

As regards the Taoiseach’s reply to Deputy Ó Caoláin that arising from the structured dialogue with the churches he anticipates a constitutional referendum in respect of matters relating to education——

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I did not say that.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The Taoiseach did say that.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I never mentioned it.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The Taoiseach stated something might arise as a result of the structured dialogue with the churches.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  Not a constitutional amendment.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The question relates to constitutional referenda and amendments.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  Everything I say does not relate to constitutional amendments.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I only ask the questions.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I know that but the Deputy said I was anticipating a constitutional referendum.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I admire the Taoiseach’s enthusiasm to answer my questions, which is new. I welcome it and do not wish to discourage it.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I admire Deputy Gilmore’s attempt to align my view with his.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  Does the Taoiseach anticipate a constitutional change arising from the structured dialogue in respect of education? I thank the Taoiseach and am delighted to see he is so——

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  The Deputy is welcome. I always admire his dexterity in trying to align my views with his in the context of the question asked, which may well be different.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I thought the Taoiseach had strong republican views like mine.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I have strong views on these matters.

[885]On the question regarding education, I simply stated a dialogue was commencing. The suggestion that I am anticipating an outcome that would require a referendum is way off the mark in terms of where the discussions are currently. There are many detailed issues to be discussed. I acknowledge that in light of societal and social change and so on, there is a need to have in place modern governance structures, taking into account the constitutional entitlements of all citizens in respect of education and all types of education, including ethos based education. It is a complex issue, one which I am sure the Deputy will be aware will not be resolved overnight. It would be, in my opinion, a foolish person who would suggest that the outcome will be a constitutional referendum. We are not yet at that point in respect of that matter. However, I acknowledge the need for respectable debate in that regard.

As regards when the referenda may be held, the programme for Government states in respect of Article 41.2 that full consideration should be given to this matter in line with the renewed programme for Government. We are considering the matter in terms of how it should proceed. No decision in respect of timing has yet been made given the need to consider issues such as cost and so on. With respect, it is better to hold such referenda at a time when more than 30% of the people are voting. I would like everybody to vote on the issue on the day.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  That is a prospect to be welcomed, bring it on.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I would not be totally Dublin centred on these issues.

Deputy Jan O’Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  Perhaps not 100%.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  That is great news.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  As Deputy O’Sullivan will be aware, the people of Limerick might want to have their say on the matter.

Deputy Jan O’Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  We too would welcome a general election.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I hope the Deputy is returned when the opportunity arises.

As regards when the referenda will take place, preparation and enactment of enabling legislation followed by a referendum are matters to be considered when the issue has been thought through.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I also asked about the establishment of the electoral commission.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  The electoral commission has not yet been established. As the Deputy said, the renewed programme for Government proposes an electoral commission which will propose reforms to the electoral system, including outlining a new electoral system for Seanad Éireann. Such proposals could give rise to a constitutional amendment. They may or may not, depending on the outcome of that work and the Government’s view of it. I understand that parties have been discussing Seanad reform with the Minister for the Environment, Heritage and Local Government. A consensus has not emerged there, as various parties have different positions. The Minister will have to report to Government in due course to see where we can take it from there. The establishment of a committee to see if there would be a consensus on that issue did not emerge.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  Do I take it from what the Taoiseach has said that there will not be any constitutional referendum in 2010?

[886]The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  No decision has been taken at this point to have a referendum in 2010. That is the position.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  It is now February and if the Taoiseach is thinking of having a referendum in 2010, with all that entails, I imagine he would be fairly advanced in his thinking about whether or not it was going to take place. There is a gap in the Dáil schedule in June, which is a week when no sittings are planned.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  Does the Deputy want it filled with a referendum?

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  I wondered why he had put that gap into the Dáil schedule. I know how much he likes coming here.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  Absolutely. Meeting the Deputy every day is always a pleasure not to be missed.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  It must have caused the Taoiseach considerable thought to have put a non-sitting week into the Dáil schedule for June. I wondered what that week was about. I thought maybe it was the week the Taoiseach might have an election or a referendum.

Deputy Conor Lenihan: Information on Conor Lenihan  Zoom on Conor Lenihan  Hope springs eternal.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The Taoiseach might let us know.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I will let the Deputy know if we are having one or not.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  The Taoiseach has already lined up three items for possible referenda. In all seriousness therefore, if he is going to have a referendum in 2010 he must have his mind settled now as to whether or not it will happen. He should tell the House. He knows well how people respond when a referendum is sprung on them and run at short notice. If there is going to be a referendum in 2010 on any of these matters he should tell us.

The electoral commission is in the programme for Government. I hate to remind the Taoiseadh that he is well into the second half of the life of the Government. If he is ever going to do anything about the electoral commission and is serious about it, he will establish it at some time. When was the renewed programme for Government finalised?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  October.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  Was it in October? The Taoiseach has been engaged in so much revisionism that I forgot when it was.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  It was a red-letter day for the Deputy.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  When is the Taoiseach going to set up the electoral commission?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  Soon.

Deputy Eamon Gilmore: Information on Eamon Gilmore  Zoom on Eamon Gilmore  Who will be on it?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I will let the Deputy know when we make our minds up.

Deputy Michael Ring: Information on Michael Ring  Zoom on Michael Ring  Can I get on it?

[887]The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I am glad to see Deputy Gilmore in such great form today. For the record, I have outlined three areas where a referendum could have been considered. As I have already said, we are taking the legislative route on two of the interim reports we have on children’s rights. We will have a third report next week, which I am told by a member of the committee has a unanimous view regarding a referendum. The Government will consider that and take account of those recommendations. No decision has been made as to when that would arise if we were to proceed along that route.

As regards the second matter, the programme for Government says we would consider broadening the reference to the role of women in the home, in Article 41.2, to one which recognises the role the parent in the home. Consideration has been given to that matter, but no decisions have been taken either on substance or date.

With regard to the establishment of a court of civil appeal, a working group produced a detailed report on that issue. Any decision by the Government on the question of a referendum will be on the basis of a necessary examination of the details. The Department of Justice, Equality and Law Reform is advancing that as quickly as possible.

An Ceann Comhairle: Information on Seamus Kirk  Zoom on Seamus Kirk  Three other Deputies are offering. They are Deputies Bernard Allen, Alan Shatter and Jan O’Sullivan in that order.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  The Supreme Court judgment on the Abbeylara inquiry has had a profound and serious effect on the effectiveness of Oireachtas committees. The Committee of Public Accounts, which I chair, is seriously handicapped in its deliberations on the performance of Departments. For example, in our interim report on the State agency FÁS, published in February 2009, we could not say what we really wanted to say because of the constraints placed on our committee by the Abbeylara judgment. We have had many examples since in other State agencies where we could not say what we wished to say. My committee and others have sought stronger powers. The only way we can get them is through a referendum, which would give greater powers to Oireachtas committees. If we are serious about avoiding tribunals in future and giving real voice to Oireachtas committees, we must have a referendum to deal with the serious Supreme Court decision on Abbeylara. In any future set of referenda that may occur, will the Taoiseach consider the question of the effectiveness of the powers of Oireachtas committees?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  As regards inquiries and tribunals, we have set up by statute a commission of inquiry model, which provides for a more cost-effective and timely examination of matters of urgent public interest. It has proven to be a far better way than the 1924 Act. In a number of cases in recent years, it has shown itself to be a good and effective way of dealing with matters, while allowing the Oireachtas thereafter to discuss the substance of reports that might emanate from that commission of inquiry process. Difficult and sensitive issues have been well and comprehensively handled by that method. While I would be prepared to listen to the debate, I do not subscribe to the idea that principles of natural justice or constitutional justice can be easily dismissed or disregarded in an effort to ensure people say, to quote the Deputy, “What you’d like to say”.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  Based on evidence that we heard.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  The point is that the question of evidence is a matter for the courts. We have a very good separation of powers principle, whereby the Judiciary and our courts system determine guilt or innocence in respect of any potential criminal liability that people wish to [888]ascribe. In the Abbeylara case, the Supreme Court judgment was quite clear in this matter regarding the ability to make adverse findings. That has to be respected since that is the constitutional position. We should of course be open to considering what ways we can reform and assist committees in dealing with matters, but we cannot do so by disregarding constitutional proprieties.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  That is why I am saying we should have a debate.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  One cannot change the Constitution to forget about people’s rights just to make a comment in a Dáil committee.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  Why can we not have a debate on having a referendum to give Oireachtas committees more powers to deal with issues that are blatantly contravening rules and regulations of Departments and State agencies?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  That is perhaps where we have a different approach. I do not subscribe to the view that because a difficulty arose, one should provide for a constitutional amendment to get over that difficulty and allow the Deputy to proceed as he wants, given the fact that the Supreme Court has outlined quite clearly that there are serious constitutional issues involved. One would hope every individual in this State has a right to defend his or her good reputation. If may often be felt that to meet a populist view on some issue, the right should be disregarded so that people can say what they like. We have rights of privilege in the House, so there are opportunities for people to use them in order to make certain statements here, but not to abuse that privilege.

We need a balanced debate that factors in the constitutional position because it is the Supreme Court that decides and interprets it. Whether we like it or not, that is the position. When it comes to individual rights, particularly regarding principles of natural and constitutional justice, people should be very slow to change that balance. One of the important features of the Constitution is that it has a doctrine of unenumerated rights and principles of natural and constitutional justice, which are adhered to and jealously protected by the Judiciary for citizens’ benefit equally before the law.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  The Taoiseach is giving a lawyer’s view.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I am making a very important point.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  The Taoiseach is deliberately confusing the outcome of the Abbeylara decision because it is convenient to members of Government and also to those in the public service that they are not held properly accountable when things go wrong. Would the Taoiseach not agree that if an Oireachtas committee is empowered to investigate the manner in which public funds are spent or the manner in which public policy is being applied and if it has a full and proper hearing with the principles of natural and constitutional justice respected, it is in the public interest that people be held to account and it is not in the public interest that essentially redacted or censored opinions are published, which ensure that nothing can possibly be contained in the report that reflects badly on an individual’s reputation?

Would the Taoiseach not agree that the Abbeylara judgment essentially castrated the powers of Oireachtas committees and that Oireachtas committees have lesser capacity to hold people to account than have committees at Westminster, or in many of the Parliaments across Europe or in the United States? Would the Taoiseach not agree that it is time to blow the cobwebs [889]out of our political system and ensure there is true accountability — not a lynch mob or a pandering to public opinion? This House and committees of this House should be empowered to do a job in the public interest and for that to occur we need a constitutional referendum to address the consequences of the Abbeylara judgment.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  The Deputy has just given some good examples of the benefits of a written constitution over an unwritten constitution. I prefaced my reply to Deputy Allen who has a strong interest in this area, by saying that we need a balanced and reflective debate. I am not in any way shy nor am I to be unpersuaded about how we can move from where we are at the moment as a result of the Abbeylara judgment. However, I believe it will require very careful consideration in order to meet constitutional proprieties. I believe in accountability and as the Deputy has said we do not want lynch mobs. In the white heat of political controversy here I have seen attempts in this Chamber to organise a lynch mob which had to be stopped by people going to the courts to ensure it did not proceed. At that time many in the House suggested that was a very fair and proper way to proceed.

The point I am making is that having a judicial system that provides for recourse for individuals to ensure procedures are fair and consistent with the principles of natural and constitutional justice is an important protection both in terms of how we operate our procedures and for those who would be adversely affected in an unjust way or for individuals who might be brought before committees. I agree and would like to find a way through. However, it is not as simple as saying that because we have the Abbeylara judgment we should introduce a constitutional amendment that dismisses the rationale behind that decision and proceed from there. I do not believe that would bring about just or fair operations either. It is not a question of me not being open to listen to how we can proceed. However, certain constitutional protections and proprieties need to be factored in.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  Will the Government deal with the issue?

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I presume the Taoiseach is aware that the Supreme Court judgment in the Abbeylara case, from my recollection, was delivered very early in 2002. What consideration has the Government given to date to the constitutional amendment that is required to address that judgment in a manner that would empower committees of this House to operate in the public interest and in a manner that respects constitutional rights? Would the Taoiseach not acknowledge that if there is to be accountability in public affairs, Oireachtas committees examining issues of public expenditure, the application of Government policy or the approach taken by State or semi-State bodies can only address issues where things go wrong by ultimately determining why they went wrong, where the decision-making process was flawed and in some instances by identifying who was responsible or accountable for the wrong decisions made? The Abbeylara judgment at present makes it impossible for committees to do the final act which is to determine who, if anybody, was accountable. As there is a public interest to ensure accountability, there is absolutely no reason a reasonable amendment to the Constitution could not be proposed that empowers Oireachtas committees but at the same time requires them to observe basic principles of constitutional and natural justice.

On the other issues that have been raised today, the first report of the Joint Committee on the Constitutional Amendment on Children that was published in September 2008 emphasised the urgency of addressing the issue of vetting because of the large number of children in the State who have been victims of sexual abuse. Such cases are still going through our courts. For example, in recent times yet another swimming coach was convicted and sentenced for the [890]sexual abuse of children. That all-party report asked the Government to publish the legislation by the end of 2008. The Taoiseach has told the House that heads of a Bill have not even been submitted to Cabinet despite the Minister of State with responsibility for children and youth affairs engaging in some self-promotion in December whereby the media announced that heads of a Bill would be considered by Cabinet in December 2009. As a consequence of everything we have learnt, read, seen and understood about sexual abuse, we have a very profound obligation to children to fast-track this legislation, bring it through the House and have it enacted before the summer to ensure we have vetting procedures in place of a standard that reflects those in other countries to ensure children are protected from sexual predators.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  As I have said the Minister of State is proceeding with that work as quickly as possible. It is a priority.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  It is a year and a half late.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  The Deputy is entitled to criticise if he wishes. I am here to give him the information in Question Time as to what is the position and what is the disposition of the Minister of State.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  An all-party committee asked for that legislation to be prioritised.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I am aware of that.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  It is being ignored.

An Ceann Comhairle: Information on Seamus Kirk  Zoom on Seamus Kirk  Deputy Shatter, please, you had a good innings.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  On the other matter, as I have said the programme for Government made no commitment to introduce a constitutional amendment to overturn, modify or change the Abbeylara decision. In the course of the discussion we have been having on the question, which was a related question that Deputy Allen asked, I gave my personal views on the matter as to what is my disposition. It would require further work on everyone’s part to bring forward proposals. However, I am not committing the Government, if a constitutional amendment is required, to having that constitutional amendment. I am simply having a discussion based on the questions raised by Deputy Allen.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  Would the Taoiseach agree that committees, including the Committee of Public Accounts, are badly hindered in their attempts to do the work they are appointed to do at the moment? Hindered is a mild word to use.

An Ceann Comhairle: Information on Seamus Kirk  Zoom on Seamus Kirk  Deputy Allen, please.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I would make this point about perhaps not just the Committee of Public Accounts or other committees, but committees of the House. The effectiveness of committees in respect of acting within their remit, whatever it may be now or in the future, is greatly helped by the avoidance of political partisanship on those committees. If there were confidence among everyone in the House that when matters arise they are not simply used for the purpose of attacking Government, as has been the case in a whole range of issues——

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  Such as?

[891]The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  A whole range of issues.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  Is the Taoiseach saying there should never be accountability?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  No, that is not the point I am making.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  There should be no accountability for either Ministers or the public service?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  No, I am not making that point. I am talking about people engaging in partisan political behaviour on committees, which greatly militates against their effectiveness.

Deputy Alan Shatter: Information on Alan Shatter  Zoom on Alan Shatter  The Taoiseach’s party has a majority on every committee.

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I have been in the House long enough to recall that it was in the absence of partisanship, particularly on those major committees we are talking about, in the past that people worked very well. They did a good public service but were able to do so without the political point scoring that goes on.

An Ceann Comhairle: Information on Seamus Kirk  Zoom on Seamus Kirk  Deputy Allen has had a very good innings on this issue and can revisit the matter at a different time. I call Deputy O’Sullivan.

Deputy Bernard Allen: Information on Bernard Allen  Zoom on Bernard Allen  All reports from my committee are unanimous.

Deputy Jan O’Sullivan: Information on Jan O'Sullivan  Zoom on Jan O'Sullivan  I refer to two issues. In an effort to be constructive on the matter just discussed, are the Taoiseach and the Government willing to work constructively with all parties in this House, within the terms of the Abbeylara judgment and in advance of what may or may not be an constitutional referendum, to enable Houses of the Oireachtas committees to do as much as they possibly can within the law and the Constitution in terms of investigative procedures? I was on the committee regarding the Judge Curtin case, which was held behind closed doors. However, there was a mechanism used in that case whereby a legal team asked questions on behalf of the committee and that was effective in allowing certain things to be done that might not otherwise have been done by Members putting questions directly. That is just one example. I seek an assurance from the Taoiseach that the Government will work with all parties to extend, in so far as possible, the ability of Oireachtas committees to probe into matters of public importance. There are very significant matters of public importance that must be probed by this House if we are to do our duty as Members.

I refer to Article 41.2 of the Constitution and the proposed amendment on parents in the home. I was a member of the Joint Committee on the Constitution in the previous Dáil that made that recommendation and a further series of recommendations in respect of the family, not all of which require constitutional change. Will the Taoiseach indicate if the Government will re-examine those recommendations? I realise he is waiting for a third report on family law and so on but certain children are at risk of sexual abuse, including the children referred to in the vetting legislation. I urge that issue be moved forward as quickly as possible.

There are other categories of children to be considered, such as children in foster care or whose parents do not live together and who have great difficulty getting access to their fathers. For specific groups of children there are a number of areas that can be advanced without a constitutional referendum. Will the Government commit to whatever actions should be taken in these areas? I refer to soft information and vetting, a matter that has been around for ten [892]or more years and that has moved from one Department to another. Will legislation be brought forward in this area as a matter of urgency?

The Taoiseach: Information on Brian Cowen  Zoom on Brian Cowen  I already answered that question earlier. It is being prepared and proceeded with. As people are aware, it is a complex area, but regardless of its complexity I accept it is important legislation and it is being pursued as quickly as possible.

I refer to the earlier question on the Oireachtas committees. There are things to be done and matters to be investigated by people other than those on Oireachtas committees. Oireachtas committees are not a panacea for every problem. However, there is a point to be made about how we can make them more effective. I have indicated that regardless of any other powers they require, it would be beneficial if everyone approached committees and membership of committees in the interests of avoiding what can often descend into party political bickering or defending positions one way or the other and getting away from the merits of the case. That takes away from the effectiveness of committees and their standing in the public eye, at home and internally. I acknowledge a lot of good work is done by committees and I am in favour of effective accountability, whereby we are seen to do our job and rise above some of the party political positions that, often, we must take for other reasons related to other matters.

I refer to the other recommendations in respect of children’s issues generally. They are part of the brief of and the reason for having brought forward the Minister of State with responsibility for children. The introduction of the Office for the Minister for Children and Youth Affairs has been an effective means of bringing focus to these issues, a joined-up approach and cross-departmental responsibility where children are affected. It has been a means of giving greater profile to these important issues and areas.


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