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Dáil Éireann debate -
Thursday, 27 May 2004

Vol. 586 No. 4

Child Trafficking and Pornography (Amendment) Bill 2004 [Seanad]: Second Stage.

I move: "That the Bill be now read a Second Time."

The Child Trafficking and Pornography Act 1998 has proven to be one of the most effective measures against the sexual exploitation of children in Europe in recent years. It has been widely studied by Members of Parliaments in other jurisdictions as a model law in child protection.

We must be particularly sensitive to issues surrounding child pornography. For that reason, the intricacies of the 1998 Act have come under closer scrutiny than ever before. One of the concerns that exists about the Act is that it might have the effect of constraining — or even rendering criminal — legitimate investigations by committees of the Oireachtas into matters relating to child pornography. It might also have the effect of restricting the level of co-operation between Houses of the Oireachtas, or committees thereof, and persons from whom co-operation is desired.

In this regard, concern arises in the first instance because possession of child pornography is one of the criminal offences established by the Act. This would mean that, on the face of it, anyone who comes into possession of child pornography for the purposes of legitimate inquiry or investigation would themselves be guilty of that same offence. The Oireachtas, in its wisdom, anticipated this problem and avoided it in most circumstances by providing, at section 6(2) of the 1998 Act, that the Act does not apply to persons who possess child pornography: in the exercise of functions under the Censorship of Films Acts, the Censorship of Publications Acts and the Video Recordings Acts; or for the purpose of the prevention, investigation of prosecution of offences under the Act. This means, for example, that members of the Garda Síochána who may be investigating child pornography offences can take possession of child pornography without fear of themselves being guilty of an offence.

As the law now stands, no exemption of this nature extends to Members of the Oireachtas who may come into possession of child pornography as a consequence of carrying out their proper functions. This creates the anomalous situation that, should a House of the Oireachtas, or any committee thereof, desire to gather evidence in respect of any matter relating to child pornography, any Member who came into possession of such pornography might technically be committing a criminal offence. Any civil servant or legal adviser assisting in such an investigation would similarly be committing an offence if they came into possession of child pornography in the course of their legitimate functions.

Similar concerns would arise in regard to the offences of publication or printing of child pornography, which might theoretically expose to prosecution a person who only published or printed the material in question in the course of legitimately carrying out a function of the Oireachtas. Clearly this would not be a tolerable position in which to place any Deputy, Senator or official.

A further difficulty stems from section 5 of the 1998 Act, which makes it an offence to distribute child pornography. At section 5(2), distribution is defined as including the parting of possession with child pornography. This would lead to a situation where a person, who is or might be in possession of child pornography, might refuse to hand over to the Oireachtas either the child pornography itself or computers on which the child pornography is or may be stored, such a person might possess the material innocently. If, for example, he or she owned a computer on to which some third party had downloaded child pornography, such a person might not even be certain that the material in question is child pornography at all within the legal meaning of that phrase. However, regardless of whether he or she possessed the pornography innocently or otherwise, that person might well refuse to co-operate with an investigation or inquiry by the Oireachtas because, in doing so, he or she might run the risk of committing a criminal offence.

The solution we propose for this problem is to insert a new section 13 into the 1998 Act which will ensure that nothing in that Act shall prevent either: the making or compliance with a direction under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997, as amended: or the possession, distribution, printing or publication by either House of the Oireachtas, a committee — within the meaning of that Act — or any person of child pornography for the purposes of, or in connection with, the performance of any function conferred by the Constitution or by law on those Houses or conferred by a resolution of either of those Houses or resolutions of both of them on such a committee.

The Bill will permit Members of the Houses of the Oireachtas, together with any appropriate officials and advisers, to carry out their appropriate functions in circumstances where issues relating to child pornography might be involved. It will also clear the way for third parties to hand over relevant evidence without fear of being prosecuted merely for giving the material over and it will prevent such third parties from relying on the provisions of the 1998 Act in order to refuse to co-operate with the Houses of the Oireachtas or any committee thereof.

This is a simple and straightforward measure and I commend it to the House.

This legislation had not even been mentioned until last evening as being part of the process being put in place in respect of the current controversy about Judge Curtin. I had a full meeting with the Attorney General last week and this legislation was not mentioned. I had a full meeting with the Minister for Justice, Equality and Law Reform on Tuesday night last and it was not mentioned. The first I heard about this proposal was at 5 p.m. yesterday. This is no way to deal with legislation and it is a recipe for making bad legislation.

I would love to be in a position to give a considered view on the legislation but unfortunately I cannot do so. I have only just read the legislation having earlier today been involved in the debate on the other item of rushed legislation. What is the rush? Why not deal with the legislation next week, by which time Members would have had time for some considered reflection on it? I raised this issue earlier and I was not given a reasonable response other than that there is a job to be done. What is the nature of that job? It is to deal with a particular individual in what should be a calm, reflective way. I question the basis on which it has been dealt with by the Government. This is "ad hockery" at its worst.

The Government's culpability in not putting in place measures during the past five years, long before this issue arose, is further heightened by its rushing the Bill through and not giving the Oireachtas, which the legislation is supposed to serve and help, sufficient time to adequately reflect on the consequences involved. That is the wrong way to deal with legislation and it is a recipe for difficulty and possible failure. If such an eventuality comes to pass, it will be the sole responsibility of the Government which has been utterly incompetent in dealing with this issue in general and which is guilty of the most gross "ad hockery" regarding the way in which the legislation is being dealt with.

As spokesperson for the main Opposition party, Fine Gael, I committed myself to co-operate with the Government in terms of trying to ensure that proper steps would be taken. From that point of view, I do not feel the legislation can be opposed at this stage. However, my lack of opposition to it is solely based on the fast and full responsibility of the Government for it, the Bill taken earlier and all aspects of the procedure proposed in respect of the current controversy about Judge Curtin.

As regards its substance, the legislation is designed for a particular purpose which cannot be avoided, namely, to ensure that members of a committee proposed to be established by the Houses to deal with the issue under Article 35 will, without fear of prosecution in carrying out their duties on such committee, be able to view certain items of child pornography.

Let us be blunt, about what child pornography are we talking? We are discussing child pornography in respect of which major issues of admissibility arise. In discussing the question of admissibility, the Government should have taken the opportunity to deal with the issues of admissibility relating to that particular child pornography. The committee will not be able to see it unless it is admissible and huge issues have been raised with regard to its admissibility on the basis that it is constitutionally tainted. I merely make the point at this stage as this is not an issue which will be resolved now. It will be the responsibility of the Government before this process is completed to clarify and deal with those issues about which, I am sure, there are conflicting legal opinions. Basically, what we are talking about with regard to this Bill cannot arise unless the evidence is admissible.

Some questions I would like to raise might be more appropriate to Committee Stage of the Bill. However, I will raise them with the Minister of State now. Is the Bill as proposed sufficiently clear to cover the position not just of members of the committee but of all those associated with it? These could include legal advisers, staff and experts called in to advise the committee. This is an issue that should be clarified. It is an issue which caught my eye on first glance at the Bill. Perhaps the reference to "or any person" may cover these people. The issue should be clarified.

Defects in the Child Trafficking and Pornography Act 1998 were signalled long ago. Section 3 of the Bill leaves a wide open loophole with regard to the offence known as "grooming". The Act was enacted before the practice of Internet grooming became as widespread as it is today and was not specifically designed to cover that dreadful practice. As it stands, section 3 makes it an offence for an adult to arrange for a child to travel for the purpose of sexual exploitation. The Act was specifically drafted to deal with child trafficking and does not cover a situation where a child is not coerced into meeting a predatory adult. In legal terms, under the existing Act coercion of the child is a necessary element to make exploitation an offence. It is unacceptable for us as a society to leave this loophole as it is. There have been some high profile cases on this issue in the United Kingdom recently. As it stands section 3 of the Act is outdated and does not adequately cover the practice of Internet grooming.

I raise this issue because we are dealing as a matter of urgency with an issue under the Child Trafficking and Pornography Act 1998. We are amending that Act. Why then do we not deal with the obvious loophole in it, which has been drawn to the Government's attention on a number of occasions? Why is the opportunity not taken to close that loophole? It would be simple to do so. If the Minister of State was willing to accept an amendment, I would propose one. A further indication of the unholy rush involved is that an obvious loophole, to which attention has been drawn, is being left open while we rush through all Stages of a Bill that deals with this Act. If I had been given the opportunity to discuss the Bill in detail before it was circulated — that would probably have to have been before dawn this morning — I would have suggested that we should deal with this Bill next week and use the opportunity, in the interest of children, to close the loophole to which I referred. This is another example of the downside to rushing through legislation. This example is of omission from the proposed Bill of an area with which we could and should have dealt.

I am not certain the provision before the House deals with the problem arising from the current controversy. I have not had sufficient opportunity to give careful reflection to the Bill or to take advice on it. Therefore I will not give it my full approval but put my concerns on the record of the House. This Bill is just one part of the rushed strategy being put in place, for which the Government must take full and complete responsibility, and on the basis it does so, I will not oppose the Bill.

I welcome the Minister of State to the House. I reiterate, as I did with the previous legislation, that the Labour Party is unhappy with the manner in which both items of legislation are being rushed through both Houses. It is unusual to put emergency legislation through both Houses on one day and highly unusual that two items of legislation are being dealt with in that way. Nobody, not even the most optimistic Minister, could suggest that this provides adequate time for scrutiny of the possible implications and intricacies that bedevil legislation. Even if these Bills are only short amending Bills, they have far-flung consequences and implications.

There was no need to rush this legislation as it is not necessary for it to go through at this time. It is the type of belt and braces legislation that is probably unnecessary. The Minister of State said in his address that members might be technically deemed to be committing a criminal offence but once they are acting in a legal capacity and for a legal purpose, they will be excused as the exemption is likely to apply. As far as I can gather that is the legal advice.

Therefore, this Bill is merely precautionary legislation that may or may not come into play with regard to matters to be dealt with in due course. For that reason it should not be before us today. It should be left for another day to give us adequate time to scrutinise it, to allow us time for reflection and proper analysis of the parent legislation it amends, the 1997 Act, and to see its implications. When an amendment is grafted on to legislation — this one is substantial — it can affect the balance of the legislation. We do not know for sure whether that is the case and the Minister of State might elaborate on how the entirety of the legislation, as amended, will operate. We are processing this legislation at the wrong time and we may not even need to do so. Perhaps we could get a further statement on the necessity for its introduction at short notice or for its introduction at all. The purpose of the Bill is to allow for the possession, distribution, printing, publication or showing of child pornography to a committee or a person for constitutional purposes and it applies not only to Members of the two Houses but also to the officials who may be engaged with the committees.

The question must be asked as to why this legislation is before us. What are the circumstances in which a committee of the Houses is likely to peruse material of this nature? Is there a current situation that is pertinent to our discussions? It is intended that a specific committee will be established under a number of motions, which we have been given to understand will be presented to both Houses next week, and a particular course of action will be embarked upon.

One of the points made, to which I would like the Minister of State to respond, is the admissibility of material declared inadmissible in a court of law. Is the view of the Government, the Attorney General and the Minister that evidence ruled out by a court of law because it was deemed to have been unconstitutionally obtained can nonetheless be deemed admissible in an Oireachtas hearing? Is it central to the Government's case that evidence thrown out of court on the basis that it was secured on foot of a spent warrant could be presented to a committee of the Houses behind closed doors? If that evidence is not admissible before a committee, is a central plank of the case against a named judge on grounds of misbehaviour likely to be removed? That will be a matter for the proposed committee, when established — I am sure it will have legal advice available to it — and it will decide whether it believes the evidence obtained in those circumstances is admissible. That would be a decision of each member of the committee. Prior to getting that far down the road, it would be relevant for the House to hear the views of the Government on this matter. If it is envisaged that a committee will hear evidence of this nature, we would like to hear how the Government intends to disport itself in regard to that evidence.

As Deputy Jim O'Keeffe said, the principal Act, even in the short space of time it has been in existence, some six years, is somewhat outdated. It does not seem to have envisaged the operation of the Internet, chat rooms or the extent to which the Internet is and can be used for the distribution, availability and accessibility of pornography, including child pornography. That is an area that could also be addressed. While this is a short and precise Bill for a particular purpose, it could have been an opportunity to address the parent legislation so it conformed to current needs to ensure it would be realistic, appropriate and pertinent.

I am not in any way opposing the legislation, but I would like to hear proper justification from the Minister of State as to why it is before us, the reason it is necessary to pass it and whether there is full agreement by the Government advisers on the necessity for it.

I would like to share my time with Deputies Cuffe and Connolly.

Is that agreed? Agreed.

I welcome the opportunity to speak to this important legislation. Before I go into the details of the Bill, it is important that all Members keep a clear head, deal with the facts and seriously consider the problem of child trafficking and child pornography. I express concern about any legislation that is rushed through this House. We are entering a legal minefield on these issues and that is why I raise these concerns. We all want our justice system to work. We all want fairness and due process. We are all against the abuse of children and child pornography. We all want well thought out legislation. I have concerns about the proposed legislation. Making it up as we go along should never be an option. I raise these issues to ensure that the Houses of the Oireachtas are not undermined in any way.

When dealing with the nightmare of child pornography and the sexual exploitation of children, a tough and determined position must be taken. These children are human beings; they are somebody's son or daughter whose innocence has been shattered and ruined forever by child pornography. This type of violence against children is their worst nightmare. It is an attack on their dignity, human rights and their right to live out their full lives as children. It is appropriate that the Minister of State with responsibility for children is present.

A society that stays silent on child pornography or condones child trafficking loses its heart and soul and in the end that society falls apart. We should also remind ourselves that there would be no child pornography industry if it were not for adults. Adults generate the market and develop the abuse. This is a reality to which we must wake up. Internationally, millions of children are being sexually exploited each day. The sad aspect about many of the cases is that the children concerned come from very poor backgrounds or very poor countries or sadly in the case of the EU, including Ireland, they often come from chaotic and dysfunctional families. That is a reality with which we have to deal. Some children in this State who come from violent dysfunctional families end up on the streets involved in child prostitution and also find themselves at risk in other situations. That is happening in this State and is something to which we must waken up.

We must ensure this legislation is tight and legally sound. Its purpose is to insert a new section into the 1998 Act. Section 1 amends the 1998 Act by inserting a new section. The purpose of the amendment is to ensure that nothing in the 1998 Act shall prevent the giving of a direction by a committee of either or both of the Houses of the Oireachtas under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, or compliance with such a direction, or the possession, distributing, printing, publication or showing by either House, a committee or any person, of child pornography in connection with the performance of the functions conferred on those Houses by the Constitution or by law, or on a committee by resolution of those Houses or a resolution of either House. These are the core issues in the legislation.

Regarding our judicial systems and how we ensure justice is done, we will have to revisit the appointment procedures for judges. All political parties are deeply involved in this process and the public are extremely concerned about the jobs for the boys and girls syndrome. One should be appointed as a judge on merit, ability and integrity, not because one hangs out in the right political circles or supports the right political party. We have to face up to this reality, which is relevant to this debate. Since I was elected two years ago, I have been questioned on many occasions by citizens and taxpayers who have a lack of confidence in the level of justice in society. Many people feel alienated as a result of the perceived lack of justice.

I wish to speak about the broader issue of child pornography. It is important that we bear in mind that there are other forms of pornography, such as so-called "soft porn" and lap-dancing clubs in which people are exploited. Regardless of the terms that are used to dress it up or make it sound reasonable, it is sexual exploitation. The fact that children are involved makes it more sinister. Belgium was ripped apart by a recent case on this issue. I call for a measured debate on the Bill.

I would like to refer briefly to the recognition of the Independent group in the Dáil. Independent Members, who were democratically elected by the people, should be involved in all Oireachtas committees. We are members of the Technical Group but we should also be recognised in our own right. Recent opinion polls in Connacht and Munster have shown clearly that Independent candidates represent between 10% and 16% of the people. This mandate should be respected in the House and elsewhere. I criticise political commentators. The major parties should accept reality. When the membership of committees is being decided, Independent Members should be included in our own right. People must recognise that as Ireland develops, its political landscape continues to change.

I support the Bill, but I urge people to listen to the concerns I have raised during today's debate. It is important that they do so. The Minister of State mentioned in his speech that the Child Trafficking and Pornography Act 1998 has proven to be one of the most effective measures taken in Europe in recent years as part of the struggle against the sexual exploitation of children. I welcome the Minister of State's correct assertion that the Act has been widely studied by politicians in Parliaments in other countries as a model of child protection. While it is important to have examples of good legislative practice to combat child pornography, it is also important to implement legislation and to ascertain whether it has delivered for children. That is the real test of quality legislation.

We have to do something about the fact that the abuse is continuing. I have received many complaints from parents in recent weeks about television programmes, some of which are broadcast seven nights a week, that are not suitable for children. We have to examine such issues. The Minister of State rightly raises the possibility that a person might possess the material innocently, for example if a third party downloads child pornography on to his or her computer. We have to be vigilant about such cases.

I disagree with the Minister of State's assertion that the Bill he is commending to the House is simple and straightforward. It is not as simple and straightforward as many people think. It is crucial that we have a cool, measured and calm debate on this matter. We should respond as legislators in a strong manner. I will support the Bill because we have to deal with the problem. We have a duty to ensure that the legislation we pass is of the highest class. We will not do victims any favours if the Bill is not of best quality and we will not do the judicial system any favours if we do not get this right. While I support this legislation, I ask the Minister of State to take on board my concerns about it.

The abuse of the most vulnerable people is at the heart of this issue. We do not know enough, however, about many complex matters that are relevant to it. As Members of the Oireachtas, it is difficult for us to deal with such unknown matters. We do not know enough about individuals, information technology and financial transactions. Such subjects will have to be revisited at a future date. The Bill before the House is the subject of considerable unease, which primarily relates to the haste with which this legislation is proceeding. I received a draft copy of the Bill last night with hand-written amendments. I am worried when legislation is rushed.

I have many questions about the Bill. I am not sure that Members of the Oireachtas should view the material mentioned in the legislation. I wonder if we could allow such viewing to be done by a third party, such as an expert witness who has an educational background with suitable qualifications that enable him or her to comment on such material. I am not sure whether Members of the Oireachtas are the best qualified people in that regard. If Members view such material, I hope they will be given expert advice in advance. When one considers the concerns that exist about the kind of material under discussion, it is possible that they may need counselling.

There are complexities about the discussions on the material, how it will be transmitted electronically and how it might be paid for by financial transactions. We will need to get solid expert advice to comment or reach judgment on such issues. Expert witnesses will be required. We should consider ensuring that the proceedings will be held in camera. I wonder whether we might make reference to that in the Bill under consideration. It seems that any discussion of the material, as mentioned in the Bill, should take place in private. That issue needs to be considered. I am concerned about the issues that have been raised by the Bill. There may be a compelling case to move the legislation along swiftly, but I have yet to see evidence of the need to move as rapidly as we appear to be moving on this issue.

I wish to address the wider issue of the appointment of people to positions of authority. The issue was raised by my colleague, Deputy Finian McGrath, who spoke about appointments to the Judiciary. The appointment of judges needs to be completely depoliticised. We have to ensure that judges receive adequate training. We should ensure that an adequate system of penalties is in place for members of the Judiciary who engage in behaviour that is unfitting of their office. I make these remarks in response to the points made by Deputy McGrath.

I am concerned by the haste with which the Bill is being pursued. We should make some reference to the viewing of such material in camera. I am not convinced that Members of the Oireachtas should view such material directly. I hope it might be possible for expert witnesses with a professional background in this area to give us their views on such material.

Tacaím leis an Bhille leasaithe seo. Mar a dúirt mé níos luaithe faoin reachtaíocht eile atáimid ag deifriú tríd an Teach inniu, is oth liom go bhfuil gá deifir a dhéanamh faoi reachtaíocht den sórt seo. Tá impleachtaí ann agus beidh impleachtaí ann nach bhfuilimid in ann déileáil leo i gceart i leathuair a chloig nó uair go leith. Is trua é sin. Dá mbeadh deis níos faide againn déileáil leis seo, b'fhéidir go n-aithneomis rud nó dhó eile a d'fhéadaimis athrú ag an am céanna.

Ins an Páipéar Bán a d'fhoilsigh Roinn an Taoisigh níos luaithe i mbliana, Regulating Better — a Government White Paper setting out six principles of better regulation — luaitear gur chóir i gcónai deis cheart a ghlacadh sula ritear reachtaíocht. Deirtear gur cheart cinn Bhille, mar shampla, a fhoilsiú i bhfad roimhré agus go ndéanfaí "regulatory impact analysis" ar gach Bhille. Is é atá i gceist ansin go ndíreofaí isteach ar an tionchar a bheadh ag Bille ar bith.

Tá sé molta ag Teachtaí áirithe nár cheart do Theachtaí a bheith ag féachaint ar an ábhar gránna seo. Mhol an Teachta Cuffe, mar shampla, gurb fhearr finnéithe saineolacha a úsáid. Ní rachainn chomh fada sin, ach ba chóir dúinn féachaint níos géire ar an tionchar a bheadh ag an ábhar seo ar Theachtaí amach anseo. Ar ghá do Theachtaí dul faoi bhráid chomhairleoirí má tá an t-ábhar chomh dona sin?

Níl mé i gcoinne na reachtaíochta ach táim ag iarraidh go gcaithfear níos mó ama ag déileáil leis an gceist ar fad. Tacaím leis an reachtaíocht seo agus leis an mBille a bhí os comhair an Tí ar maidin. Ach ní chóir go mbeadh an oiread seo sodar fúinn ag déileáil leis an gceist. Ní dhéanfadh sé mórán difríochta dá gcaithfimís cúpla seachtain breise ag díriú isteach ar na Billí agus b'fhéidir go mbeadh reachtaíocht níos fearr againn ina dhiaidh sin.

A number of points have been raised on Second Stage and it is important to note that the Attorney General advised the Government, as a matter of prudence, that this step should be taken. Deputy Jim O'Keeffe was concerned about the speed with which this legislation is being enacted. His concerns were echoed by Deputies Costello and Ó Snodaigh. The speed with which this matter is being dealt with is entirely connected with the fact that another step is imminent concerning a matter about which the Government has been in correspondence with a judge of the Circuit Court. The Attorney General has advised the Government that this measure is essential if the Oireachtas is to be in a position to exercise properly its functions and powers under constitutional and statute law. That is the reason for the rush. It is not a question of waiting for another few weeks to speculate on matters because the confidence that must exist in the Judiciary is one of the cornerstones of our democratic system. Throughout this episode, the Taoiseach and the Government have been most anxious to maintain the public confidence that must exist in the Judiciary, and to ensure that the Government wastes no time in taking the essential steps needed to advance the matter, which has been the subject of correspondence between the Government and the relevant Circuit Court judge.

The legislation is drafted in abstract form and is of general application. It does not apply in any singular sense to the matter which we may have to consider in the weeks ahead. It seeks, rather, as a matter of general principle, to protect the position of the Houses, their committees and persons working on their behalf. That issue was raised in the course of Deputy Jim O'Keeffe's contribution and it is quite clear the proposed section covers persons working on our behalf as well. The purpose of that is to ensure that the powers of the Houses, which are clearly delineated in the Constitution and in statute law, can be exercised if required.

I appreciate the fact, to which Deputy Jim O'Keeffe and Deputy Cuffe referred, that notice of this measure has been very late, but I am sure Deputies will appreciate that the Attorney General has had to undertake a wide series of consultations in order to gather a great deal of advice. While similar motions have been introduced in the House before now, this is the first time since 1922 that we may be in the position of facing a contested motion. Therefore, legal advice has to be sought, the ground must be cleared and the legislative scaffolding must be in place so that the House can exercise its functions.

I welcome the fact that there was very little criticism of the substance of the measure, which is straightforward. The Government will assist the Dáil and Seanad in every way it can as regards the question of culpability, which was raised by Deputy Jim O'Keeffe. If we have to exercise our responsibilities in this area, we will have to do so collectively because a collective decision and judgment of each House will determine the issues involved. In that sense, it is not a Government measure but the Government must heed the legal advice it obtains, act on it and give the benefit of that advice to the Houses.

Deputy Costello posed a sequence of questions about the admissibility of evidence in connection with this matter, and Deputy Jim O'Keeffe also touched upon it. As regards the material the Oireachtas may use, view, inspect or act upon, it is a matter for the members of the relevant committee, in the first instance — and guided, as they please, by their legal advisers — to make a determination on this issue. Neither the Houses of the Oireachtas nor their committees are courts of law, and they do not necessarily act on the standards of proof that obtain in courts of law. It is not for me to advise it, but clearly if a committee is established, it can take advice on the matter and decide what is the appropriate course of action relating to any material it may wish to see or act upon, or whether it is constrained as regards such material. That is a matter for the committee. It is not a matter for the Government to tell the committee what to do about the admissibility of evidence because the Houses have a collective responsibility under the Constitution and statute law. The committee will also have a collective responsibility.

An important issue relating to the whole subject was touched upon by Deputy Finian McGrath who said the mandate and rights of Independent Deputies should be respected in the composition of any committee. However, we are not sitting on this committee as members of parties, although we would all like to see a fair balance of representation from all the parties. We are sitting, first and foremost, on a serious public issue that requires a collective approach from the Houses.

To revert to the question of admissibility, that is as far as I can clarify matters for Deputy Costello. The rules relating to the admissibility of evidence before the courts relate primarily to sworn proceedings which are conducted under oath. Many of the stricter rules relating to admissibility were devised in the context of trials of offenders. The House is not trying an offence in this matter. I can say no more on the subject of admissibility.

Deputy Jim O'Keeffe and Deputy Costello raised the question of grooming and whether we could have included other provisions in the legislation. Given the expedition required in this matter, it would have been undesirable to introduce other provisions into this measure, however worthy they may be. The measure before the House is straightforward. Apart from the recitals and citations, the substance of the Bill is in one section. To enter into other matters would complicate the issues. The question of grooming is being examined in the context of preparing a trafficking and child exploitation Bill. Much thought is being given to the question of how grooming can be tackled.

I wish to correct Deputy Costello on one matter. The 1998 Act does deal with the question of child pornography on the Internet. The legislation that is being prepared on trafficking and child exploitation may also tackle the issue of grooming.

Deputy Finian McGrath suggested the Government was making it up as it went along. That is an unfair comment because the Government has a clear and obvious strategy in regard to the matters which have been the subject of correspondence with the Circuit Court judge. The House must heed the Attorney General's views on a matter like this. There are arguments that the constitutional position of the Houses both in respect of their powers and privileges means we do not necessarily need this legislation. However, the Attorney General has advised us as a matter of prudence that we should so provide. We are best to be guided by him on that issue. The whole question of advisers and persons must be dealt with expressly in the legislation, as Deputy Jim O'Keeffe pointed out.

Deputy Cuffe expressed concern about whether Members could view such material on the assumption that the Houses' committees have the power to view the material, as appropriate. He stated that he did not think Oireachtas Members were the best qualified for this job. However, the people elect us to do a job and have provided in their Constitution that we are the people who must make these particular decisions. We cannot shut things out of our minds. We must make judgments and that is the position we have been put in by the people. We cannot shirk our responsibilities by stating that we would like an expert to tell us what we should think about something. At the end of the day, we must decide what is right in this particular matter, which is the responsibility imposed on us.

Deputy Cuffe was anxious for expert assistance. If a committee is established, expert assistance is a matter which the committee can consider. He rightly stated that there is a need for solid expert advice which is something a committee of the Houses collectively can make a determination on if matters proceed by way of motion and investigation. We are not yet at that stage but it can all happen. It is very much for the committee to decide these matters. I think I have dealt with most of the points raised directly on the legislation.

I appreciate the co-operative spirit with which Members addressed the issues, some of which are very difficult — there is no point pretending that is not the case. Deputy Costello was anxious to be reassured that there was a proper justification for this measure, which is the advice of the Attorney General to the Government that it would be prudent to adopt the measure. At face value it is an unexceptional measure. It is an insertion into the section of the 1998 Act which provides for exemption from the legislation. Clearly, the parliamentary draftspersons of the 1998 Act did not consider the position of the Oireachtas embarking on an inquiry under Article 34 or under the courts of justice legislation. The measure is drafted in such a way that it can only be used for the purposes of, or in connection with, the performance of any function conferred by the Constitution or by law on those Houses, or conferred by a resolution of either of those Houses or resolutions of both of them on such a committee.

For example, to take Deputy Cuffe's point about child pornography and the obvious distaste he has for viewing such material, which I can readily understand, the position is that Members of the Houses of the Oireachtas, in carrying out a general inquiry on the subject of child pornography under this legislation, would be allowed to view this material. They might prefer to act on expert advice in a matter of that kind but the position of Parliament is carefully protected by the section which we are proposing to insert into the 1998 Act. It is important that, before we go any further in regard to the matter which has been the subject of correspondence between the Government and the relevant judge, we make sure our position is clear cut as far as legislation is concerned.

Wider questions were raised about the appointment and removal of judges. Deputy Jim O'Keeffe and I produced a report on this subject called the Fourth Progress Report of the All-Party Oireachtas Committee on the Constitution. The Government brought forward proposals on that measure but Deputy O'Keeffe and I ceased to be principals when the proposals arrived on the floor of the House and wiser, or perhaps unwise, persons decided there was no all-party agreement on the matter.

That was the case at that time.

The matter went to Second Stage in Dáil Éireann, which I recall well because the Government decided to withdraw the Bill after the Second Stage debate because it did not want the Judiciary to be the subject of a contentious referendum. It is not a subject which would have lent itself to a public debate in the nation because the Government was anxious to foster the respect which we want to have for the Judiciary. The Government decided not to have a referendum on the subject at the time and not to proceed with its proposals in the absence of all-party agreement.

It reminds us of how important it is in this very sensitive area into which we are entering to try to secure all-party agreement as far as we can. In that context, I appreciate the constructive spirit in which the Opposition parties addressed the issues this afternoon. No Deputy can be content with legislation which is produced in the morning and passed in the late afternoon.

Question put and agreed to.
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