asked the Minister for Justice when it is proposed to introduce legislation for the purpose of amending the law in relation to adoption and bail.
Ceisteanna—Questions. Oral Answers. - Adoption and Bail Law.
29.
The intention is that Bills proposing amendments of the Constitution in relation to the matters referred to will be introduced as soon as possible. The precise content of the Bills will require very careful consideration and I am not in a position to indicate how soon they will come before the House.
Arising out of what the Minister has said, am I right in assuming that there will have to be two Bills?
Yes, that would be my understanding, but I would have to be guided by the Attorney General on the technicalities.
His thinking at present is that there are likely to be two Bills. Could I ask the reason for the delay in the introduction of the Bill dealing with the adoption question, seeing that this matter was raised by the Minister and some of his colleagues here last May or June, that is four or five months ago?
As I indicated in the course of that debate when the matter was announced first, it is a most complicated question. The complications arise from the form of amendment required and also, having regard to the scope and extent of the amendment, from the complexity of the problem. The Deputy will recall that during that debate what came out was that we were trying to ensure a position that will be closing off any constitutional challenge in this area in the future.
I thank the Minister for his reply. Can he appreciate, and say, that there is a widespread anxiety amongst the parents of adopted children with regard to what is in their eyes a seemingly long delay from the time the announcement was made here by the Minister for Justice, and I think by the Minister for Posts and Telegraphs, up to the present time; that we have heard nothing further on it and we have no idea or timetable as to when this legislation for a proposed amendment to the Constitution will be initiated?
I am aware of anxiety in this area generally as a result of the case which gave rise to this development. However, the Deputy knows that the amending legislation introduced some time ago has allayed that anxiety to a very large if not a total extent. What is involved now in the constitutional amendment is to put the matter beyond any doubt whatever. I am conscious of the need for as speedy progress as possible and I can assure the Deputy that there has been no delay behind the scenes in the analysis of the work that is involved.
Can the Minister say in relation to the second part of the question, that is the question of amending the law in relation to bail, whether or not he is satisfied that the Supreme Court at present cannot have another look at the situation as it is, in view of the change of circumstances which occurred on the question of bail since the Supreme Court gave its decision on the Callaghan case of 1966? Perhaps the Minister might consider that if this were possible there might be no need whatsoever for an amendment to the Constitution.
The Deputy is asking me in effect to give an opinion on what is a legal matter, that is whether the Supreme Court has an inherent right to overrule itself. This is a matter of major constitutional implications and I would go so far as to say that the law is not entirely clear in that regard. I would not like to go any further because I would be involving myself in offering a legal opinion.
Is the Minister aware that the Supreme Court held that they can have a second look at a question and if the circumstances so warrant it their decision could be modified or reversed? If this is so perhaps the Minister might consider referring the question of bail to the Supreme Court to examine it in order to avoid the possible necessity of an amendment to the Constitution.
Law-making is for this Oireachtas and the people, and that is a principle that possibly would be involved in this area. It is preferable that law-making should be here and laws interpreted by the courts.
Question No. 30.
Can the Minister say if there is any reason why he and the Government cannot refer this matter to the Supreme Court for examination at present?
This is a matter of making changes in the law and that is a matter for this Parliament. I do not think it would be proper to ask the courts to make laws for us.
The Minister will accept that the whole question of the right to bail has always been determined by the Supreme Court and laid down from time to time with fairly clear guidelines. Is the Minister saying that, when that does not suit the Executive, the Executive propose to take from the Supreme Court the very important judicial function which they have as guarantors of fundamental rights? Surely what Deputy Collins is asking is the more appropriate way to do it.
Deputy O'Kennedy is overlooking the fact that what we are proposing here is not a change of the law by this Legislature but the initiation of a change to be put to the people. It is the people who will decide and the people are the ultimate arbiters in such matters as this. We are asking the people to indicate their willingness or unwillingness to have a change in the law from the law found in 1966 by the Supreme Court.
There might be no need to put this change to the people if the Minister would consider doing what I have suggested. Perhaps the Minister might say that as well as changing the Constitution any time the Government differs from the Supreme Court, they might refer this question to the Supreme Court to see whether or not circumstances as they are in 1976 differ from what they were in 1966 when the decision was given in the Callaghan case.
In matters such as this it is a fundamental constitutional principle that the people, who are involved here, should be consulted. That is the proper procedure constitutionally.
Question No. 30.
Could I ask, to change a principle of law——
We are proceeding to argue a question at Question Time. Question Time is not for argument on questions.
Is the Minister now saying that where there have been judicial determinations——
Deputy O'Kennedy is pursuing an argument.
It is a very important principle.
It could be very important, and the Chair is not disputing that, but we are dealing with Question Time. We cannot have arguments.
Is the Minister now saying that this Government's attitude would be that, where there has been a judicial determination at the highest level on issues of fundamental principle and fundamental freedoms, the Executive propose to initiate referenda so that the Supreme Court function can be undermined?
The Deputy should not assume that. No, I am not saying that. I say in this instance that, because of the consequences of the decision given in the context of a particular time, the Government feel that the position should be cured. The Government of themselves cannot cure it. The Government are going to the people on whose behalf this Parliament acts and on whose behalf the Supreme Court acts. If the people prefer the Supreme Court interpretation and want it to stand, then it is a matter for the people.
May I say——
We are proceeding to argue the question and the Deputy is well aware of that.
I am not arguing. I wanted to ask one question.
One question; not an argument I hope.
Can I take it from what the Minister has been saying that there is now a firm Government decision to proceed with this legislation to restrict bail and to have a referendum on the issue? Has that firm decision been taken by the Government?
Deputy Haughey has a question to me later on in the answer to which I will be dealing at some length with those issues. Perhaps he would wait until I answer his question.
This has to do with the question.
There is a firm Government decision to proceed not to restrict bail. I think that states the position. It is a firm Government decision to ask the people to give the courts permission to take into account, when they are considering the question of bail, the likelihood of the person before them committing further offences while on bail.
We can deal with it further on the question.