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Dáil Éireann debate -
Friday, 2 Jun 2006

Vol. 621 No. 1

Criminal Law (Sexual Offences) Bill 2006: Second Stage.

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

When, last Tuesday, the Supreme Court ruled that section 1(1) of the Criminal Law Amendment Act of 1935 was inconsistent with the Constitution and was not brought forward into law in 1937, an unprecedented and extremely complex set of issues was thrown up for the three arms of constitutional government, the Executive, Legislature and Judiciary, but a far graver set of issues was thrown up for Irish society, in particular for Irish children and their parents and those whose role and duty it is to protect them. It is to address some of those issues that this Bill is being introduced in this House today.

Protecting the vulnerable children of Ireland from cruel and predatory sexual abuse and exploitation has been and will be my first and overriding priority. I will have plenty of time and opportunity to protect and vindicate my own reputation and integrity over the coming days and weeks and I will do so but today my primary focus is on children.

Fashionable though it may be to look back condescendingly at the attitudes and values of the generation of politicians who enacted the 1935 Act, it must also be recognised that they decided by the terms of that Act to cast unambiguously and absolutely on persons accused of sexual abuse, which they correctly termed in their Act "defilement", an absolute liability in respect of the issues of age and consent. Put simply, they made no defence for those who defiled children that they were mistaken as to the age of the child. On these issues, the perpetrator carried all the risk.

In a prosecution once the fact of sexual intercourse with the accused by a child was established, guilt was established. No child was to be exposed to cross-examination in court in support of an argument that the accused had been mislead or had led on or consented to the act of sexual intercourse. For 70 years that was a cornerstone of our law on child protection. While that law was stern — the Law Reform Commission referred to it as harsh — it was effective. When the facts of abuse were established or admitted the child was spared the ordeal of reliving and explaining her behaviour, demeanour and motives in an adversarial court setting.

Now the Supreme Court has told us that we must allow for the issue of honest mistake to be a defence in any child protection law where children are protected by reference to their age. The inevitable consequence is that the issues of appearance, maturity, dress, behaviour, sobriety, truthfulness and credibility are now opened up for challenge in these cases. Young girls who are victims of sexual predators will be challenged on——

May I raise an issue? It is customary to circulate a copy of the Minister's speech.

I will get it for the Deputy as soon as possible.

They are on their way.

Young girls who are victims of sexual predators will be challenged on their clothes, make-up and sobriety, on their presence at pubs, discos and other venues for adults, on what they said, how they appeared and acted, on what they pretended or boasted about their past and about their experience. On all these issues their truthfulness and credibility will be rigorously tested by skilled lawyers acting for perpetrators and alleged perpetrators with a view to creating a reasonable doubt about the private state of knowledge or belief of the accused. That is the consequence of the Supreme Court decision. The court has told us in the House that if we want to protect children by reference to their age, we must allow the issue of honest belief to be opened up and to become a live issue in every court case, and to have cross-examination on that issue.

Let us be under no illusion as to what the consequences are. The change will make cases, which are already difficult, far more difficult. The change will make victims of sexual predation, who are already fearful and reluctant, far more fearful and reluctant. This will tend to create a further chill factor in the criminal law on child protection and will add a new layer of difficulty for those whose job it is to protect children from sexual abuse and to bring abusers to justice.

The public has been repeatedly told that the recommendation of the Law Reform Commission in 1990 that there should be a defence of honest mistake was an obvious, worthwhile reform that was left lying for 16 years by an indifferent and incompetent Department of Justice, Equality and Law Reform and by successive indifferent and negligent Ministers, including myself. That is a black lie.

That is why we need the Bill.

In those 16 years there has been a succession of legislative measures dealing with reform of the criminal law on sexual matters, of the law relating to children and of the law relating to sexual abuse. No Member of either House of the Oireachtas has ever tabled an amendment to any of those pieces of legislation along the lines recommended by the Law Reform Commission, and for good reason.

Successive Ministers for Justice and successive Governments have chosen not to make such a change, including Máire Geoghegan-Quinn who piloted through one of the most courageous Acts in this House to reform the law on sexual matters.

Look what happened to her.

They also include Nora Owen, who sat in this seat for a number of years, and the Minister, Deputy O'Donoghue, who occupied the same position and published——

I would not go there either.


The Minister, Deputy O'Donoghue, published a discussion paper——

The Minister should talk about the children instead of trying to defend himself. He is a disgrace.

I appeal to you, a Leas-Cheann Comhairle, to maintain order.

Order, please. The Minister should be allowed to make his statement.

The Minister should apologise and accept responsibility.

The Minister, Deputy O'Donoghue, published a discussion paper on this matter and elicited the views of the public, only a small fraction of whom supported change in this matter.

On a point of order, why is the Minister's speech not being circulated? It should have been circulated before he started.

He cannot get anything right.

Order, please allow the Minister to continue.

The reason for all this is the policy of the Department of Justice, Equality and Law Reform has consistently been not to make such a change for the very reasons I have outlined.

Some Deputies who have spoken with passion in this House on these matters in recent times have sat at the Cabinet table while that policy position of the Department of Justice, Equality and Law Reform was maintained and operated.

The Minister should defend himself.

It was not under constitutional scrutiny.

It has been suggested that warning signs that the law was unconstitutional were ignored. The Law Reform Commission never gave that warning. The law in question has been considered in its operation by every court in the land, right up to the Supreme Court, regularly and exhaustively. The X case is one of many examples of this. In the past ten years, there have been at least 25 cases where the law in question has been considered by the superior courts. It operated for 70 years. Many people have been jailed for many years on foot of this law. In 2004, as we now know, the High Court ruled that it was constitutional and, despite an appeal from that decision, the Director of Public Prosecutions continued to lay charges under it as late as 12 May of this year.

It is a black lie to suggest that the State should have realised that this law was dangerous or defective. It was effective and fair, and until this month it served the people well and stood the test of time and the test of extensive scrutiny.

It has also been suggested that legislation should have been introduced to amend it in the face of the challenge that was launched in 2002 and, if that had been done, we would not be in the position we are in today. In other words, a pessimistic assessment about the law's chance of survival should have caused the Government of the day to introduce a law to make it possible for perpetrators to cross-examine witnesses on the basis I have mentioned and with the adverse consequences I have mentioned, and that this should have been enacted just in case we lost the case in the Supreme Court. That is another example of the people being served up with a black lie.

No, it is not.

The Minister is oblivious to what has happened.

It has been suggested that if the Government had acted differently, the risk of perpetrators being released on foot of the CC judgment could have been avoided. That is another black lie.

The Minister should stop digging.

He has the emperor's suit.

The Government and I are doing all we can to ensure that the CC judgment does not unlock the gates for convicted perpetrators of heinous crimes. We are mounting a case in the Supreme Court in which we are making the case that justice and common sense and the constitutional values that protect the victim, society and the criminal justice system, and maintain certainty in the criminal law, must take precedence over abstract theory and the opportunistic right of very dangerous men to escape justice on foot of a judgment that had no relevance to the facts of their cases or convictions, or their pleas of guilty in some cases. That matter now lies in the hands of the courts. It is for the courts to determine the consequences of their own orders.

The Supreme Court decision of 23 May struck down the core and most heavily used statutory provision in our criminal code in regard to unlawful carnal knowledge of under age children. The court found that the absence for an accused person of the right to claim that one was mistaken as to the age of the victim was so great an infirmity from the constitutional point of view that the entire section 1(1) of the 1935 Act had to be declared null and void, both retrospectively and going forward.

As a lawyer who worked in the criminal courts for a great many years, both prosecuting and defending persons in trials for this very offence, I was considerably surprised. Indeed, I was shaken by the scope of this Supreme Court decision.

A Deputy

The Minister is still shaking.

He will shake more.

As the Minister for Justice, Equality and Law Reform, I knew immediately that this decision could have extreme consequences involving possible premature release from prison——

The Taoiseach said it was grand.

——of those who had committed vile crimes against defenceless children, many of them of very tender years. I am as well placed as most Members to say that the crimes against these victims cry to heaven for justice.

While the absence of the "honest mistake" defence in cases of this nature has always been recognised as a rigorous application of law, it went unchallenged in our superior courts for many generations, not without due cause. Many cases of recent years have been heard in the Supreme Court in regard to convictions under this statute and on no occasion was this argument seriously advanced or entertained. Therefore, I share with Members of this House and the parents of young people throughout the country a sense of dismay and outrage at the prospect that six or seven people who have offended grievously against children in this country could seriously be considered for early release on foot of last week's Supreme Court decision. That is why I recoiled when it was put to me last week in certain legal opinion that I should agree to the immediate release from prison — "forthwith", to use a legal expression — of the six or seven men in question who are in custody. I was not prepared to defer to that line of legal reasoning.

The Minister was brilliant.

Therefore, I explored the legal option with the Attorney General very carefully.

What is that supposed to mean?

Who put that suggestion to the Minister?

As my colleague, Deputy Brian Lenihan, pointed out yesterday on "Today with Pat Kenny", such a comprehensive declaration of the unconstitutionality of a criminal statute by the Supreme Court is extremely rare, if not unprecedented, in this country's history as an independent State. The first criminal case that was affected involved one of the appellants to the Supreme Court itself. That person's case had not even gone to trial before he invoked the appeal process. Public attention and my concern focused on the likely habeas corpus applications by people in custody serving sentences in this regard. I instructed my officials that we would not be unilaterally releasing any prisoners who thought they might benefit from the decision. I agreed with the Attorney General that any order for the release of such prisoners must be brought to the courts and opposed vigorously by every argument at the disposal of the State. Moreover, we agreed that we would appeal any High Court order in this regard made in favour of a prisoner who had been found guilty of defiling a young person under relevant legislation.

As I speak, the Supreme Court is preparing to hear the appeal by the State in the case of one such prisoner as to the validity of his release in relation to the decision made by Ms Justice Laffoy in the High Court last week. I do not want to cut across the case being made on our behalf before the Supreme Court but I believe it is a strong one. It is firmly based on the principles of justice and the concept that proven ill deeds must have real and proper consequences for the perpetrators involved.

On a point of order——

I will allow the point of order.

It would be a minimal courtesy for the Opposition spokespersons who will respond to the Minister during this debate to be given a copy of the Minister's speech. Almost 20 minutes have passed since the Minister started to speak.

That is not a point of order.

This is not the first time that we have seen such arrogance from the Minister in depriving Opposition spokespersons of scripts.

Does he have any explanation?

I have conferred——

The Minster will never learn.

Is this another device to try to deflect criticism?

I should point out that the Chair has no function in that matter.

I understand that copies of my script are on their way.

The Minister is on his way as well.

He is on the way out.

The Minister, without interruption.

The Minister will never change.

Do the media have the script?

I have conferred with the Garda Commissioner about the issue of released prisoners in this category. I will say more in that regard when and if the Supreme Court reaches a verdict on foot of today's judicial review hearing, which may also settle the legal issues relating to the validity of the continued detention of the six people I have mentioned. I will turn shortly to the substance of the Bill that the Government is bringing before the House today to correct the flaw in the law identified by the Supreme Court.

At long last.

The Minister is 15 minutes late in doing so.

Before I do so, however, I will refer briefly to some of the criticisms of the Attorney General, the Government and me arising from this situation.

The Minister will deal with that all right.

When will the Minister speak about the children?

As I have said, the primary accusations are that, somehow, we have been dilatory in our response to this legal judgment and that through incompetence we were unaware of the impending decision, the effects of which could somehow have been averted if some pre-emptive legal measures were taken by the Government.

The whole country is saying that.

Highly political charges are being made. I regret I have to use the time of the House to refute them——

When does the Minister intend to apologise?

——especially on a day when we are co-operating to bring a necessary law into effect.

The Minister can skip this part of his speech.

The legal situation that has emerged from the Supreme Court decision requires not only an appropriate legislative response from the Oireachtas but also a response from the Executive. To cope with the new situation I have described to the House, I propose to augment to a considerable degree the resources deployed by the State and its agencies in the investigation and prosecution of sexual crimes and crimes against children in particular. The agencies to which I refer are the Garda Síochána, the Forensic Science Laboratory and the Office of the Director of Public Prosecutions, which is looking for increased victim liaison funding. I propose to ask an eminent legal figure to undertake a quick but comprehensive independent review of the two issues of resources and court procedures to enable me to bring practical proposals before the Government in both respects in advance of the settling of next year's Estimates and the framing of the budget in December.

Can that not be done in the Department of Justice, Equality and Law Reform?

The Minister has a review on his desk.

I want to say a few things about the Bill.

That is a better idea.

At last — 20 minutes late.

The Bill is designed to restore in updated form the offence of unlawful carnal knowledge against a girl of 15 years or under, which was struck down by the Supreme Court. The new offences contained in the Bill protecting children against sexual abuse contain a defence of honest belief that the child had obtained 15 or 17 years as appropriate in accordance with the Supreme Court judgment. Section 1 defines expressions used in the Bill. "Persons in authority" is defined so that where a person commits such a sexual act or attempts to sexually abuse a child under 17 years of age, that person will be subject to a higher penalty on conviction than other persons. Defilement of a child under the age of 15 years will carry a maximum penalty of life imprisonment. The offences created in sections 2 and 3 criminalise engaging in or attempting to engage in a sexual act with a child. Section 1 defines a sexual act for that purpose. It includes sexual intercourse and buggery between persons who are not married to each other and any act described in sections 3(1) or 4(1) of the Criminal Law Rape (Amendment) Act 1990. Any such act would be a sexual assault with particularly aggravating circumstances. The law relating to ordinary sexual assault remains unaffected by the Supreme Court decision last week. The definition of "sexual intercourse" is taken from section 1(2) of the Criminal Law (Rape) Act 1981.

Section 2 creates a new offence of engaging or attempting to engage in a sexual act with a child who is under 15 years of age. It replaces section 1 of the Criminal Law Amendment Act 1935 which criminalises carnal knowledge of a girl under 15 years of age and sections 3(a) and (b) of the Criminal Law (Sexual Offences) Act 1993 which criminalises buggery of persons under 15 years of age. The new offence is gender neutral. The defence introduced for this offence, in accordance with the Supreme Court judgment, is for the defendant to prove that he or she honestly believed the child against whom the offence was committed had attained 15 years of age. It is for the court to decide whether the defendant honestly believed that the child had attained 15 years of age and it will have regard to the presence or absence of reasonable grounds for the defendant’s so believing and all other relevant circumstances.

This section also confirms that it is not a defence to prove that the child consented to the sexual act. The maximum penalty on conviction on indictment for this offence is life imprisonment, the same as for the offence of carnal knowledge of a girl under 15 years of age, which the Supreme Court struck down.

On a point of order, we are 22 minutes into the Minister's speech. It is absolutely scandalous that the Opposition has not received a copy of the Minister's script.

That is not a matter for the Chair.

It shows complete arrogance on the part of the Government and incompetence on the Minister's part. It has never happened before that the Opposition has not had a copy of a Minister's speech.

The media has received copies.

Not even the party spokespersons have received a copy.

This has never happened before in the House.

I regret that but the order of the House is that I must keep speaking.



He has a copy for himself.

The Minister should continue without interruption.

Are there any photocopiers in the Department?

The Government cannot pay the photocopying bill.

Section 3 replaces section 2 of the 1935 Act and sections 3(c) and (d) of the 1993 Act. It criminalises engaging or attempting to engage in a sexual act, as defined, with a child under 17 years of age. The penalty structure is analogous with the provisions in the repealed sections of the 1935 and 1993 Acts but if the offences are committed by a person in authority, the maximum penalties are higher. The defence provisions in section 2 are also incorporated into section 3. No proceedings for an offence under this section against a child under 17 years of age can be brought except by, or with the consent of, the Director of Public Prosecutions. This will ensure consistency in prosecution policy and that the Director of Public Prosecutions’ common law discretion not to prosecute in cases where it would be unjust or inappropriate to do so will be preserved in its entirety.

Section 4 allows for summary disposal of minor offences under the Act. Section 5 ensures a female under 17 years of age cannot be guilty of an offence under section 1 or 2 by reason only of her engaging in an act of sexual intercourse. This is being introduced after several representations including those of the Law Reform Commission going back to 1990 and the strongly held views of the Director of Public Prosecutions this week. These are also the views of many involved in child protection. They believe it would be wrong to stigmatise mothers and pregnant girls of 15 or 16 years of age as if they were either the victims of violent rape or they had committed a crime.

What about their partners?

Section 6 makes necessary consequential amendments to various enactments. For example, it will be possible to convict a person indicted under this Bill with another serious sexual offence where the evidence for the offence under this Bill does not warrant a conviction. Other amendments will ensure, for example, that a person convicted of an offence under this Bill will be obliged to notify the Garda of his or her name and address and any changes to those details, in other words, to register on the sex offenders register.

Section 16 of the Criminal Justice Bill 1992 provides that a video recording of evidence given by a person under 17 years of age in respect of sexual or violent offences shall be admissible at a trial as evidence. A committee established by my predecessor, Deputy O'Donoghue——

He is not in office.

——to draw up guidelines for persons involved in video recording interviews with a complainant regarding a sexual or violent offence during an interview with a garda or other person competent for the purpose subsequently forwarded good practice guidelines to my office with related recommendations.

It was my view that we needed the professional opinion and guidance of the experts in this field. It is crucially important that the video recording of any evidence given by a child who has suffered the horrors of a sexual crime does not subject that child to further avoidable stress. The Health Service Executive was, therefore, asked and agreed to come up with a protocol for the oversight of video interviewing by the Garda and social workers for the development of a joint national training programme for the staff who would be involved in interviewing and for the identification of suitable places and settings where interviews of this type might be conducted.

The HSE confirmed to the Department of Health and Children and my Department earlier that it will finalise its work on this matter before the end of the month. There will be no delay whatsoever on the part of my Department or the Department of Health and Children or any of their associated agencies in rolling out the video evidence approach to support future victims or suspected victims of child sexual abuse.

The Minister has had four years.

He has done nothing over the past six months.

I refer to developments since the process of consultation with Opposition Deputies yesterday. Two omissions from the legislation, which did not occur to any of us in conversation, occurred to me last night.

I had a dream.

One is we had not replicated the anonymity guarantees for children who are the subject of prosecutions under the legislation, which the House will obviously want to do. In the rush to get the legislation through, nobody noted that omission.

The Minister should speak for himself.

It is his Bill.

I do not know why Opposition Deputies are baying. They wanted the legislation introduced on an emergency basis.

Similarly, I noticed last night that the provisions relating to victims of more serious sexual offences under the law of rape whereby they cannot be cross-examined about their sexual past, except by permission of the court and with the assistance of their own counsel, have not been replicated for the children who will be subjected to cross-examination as well under the legislation.

What about 16 year old boys?

Amendments dealing with those two matters are being prepared and they will be tabled on Committee Stage.

We only have 30 minutes for Committee and Report Stages.

If Deputies see anything else in this legislation that needs to be addressed, I will accept any reasonably based amendment.

Between now and 2 p.m. We are only after getting them.

I gave that guarantee in private and I am giving it in public today. I want to finish on this point because my time is up.

The Minister should keep his head down.

He should move on.

This is a swansong.

There are times we engage in adversarial debate in the House and I have been as good at that as many other Members.

The Minister is worse.

I do not blame people for taking the opportunity on this issue to be critical of the Government and to demand accountability. I do not resent that activity.

Why should the Minister?

When the dust settles and the frenzy is over——

When the election is over.

——it will be seen that my colleagues in Government, myself and the Attorney General have acted competently, honestly, truthfully and with the best interests of children in mind.

When the dust settles, issues not raised until this morning in the media as to why the Law Reform Commission proposal was not adopted, the downside, the additional suffering for young children going through the courts process, the additional stress on people coming up to court cases and the fact that many people will be dissuaded from making a complaint will be live issues in the courtroom drama which will unfold.

The Minister is right all the time.

When that truth is widely understood, it will be accepted that successive Ministers for Justice, Equality and Law Reform, the Department of Justice, Equality and Law Reform and successive Governments, including Members who are on the other side of the House, made the right decision in regard to this issue.

The Minister is right all the time.

It was only when the Supreme Court laid down that we could not continue to protect children by reference to their age——

Blame someone else.

——unless we also made them subject to cross-examination on these issues, it was only when we were pushed to that point that we agreed to change the law to allow for what will be a measure which has negative consequences for the protection of children in society.

The Minister is right all the time.

Let no one in the House think that the measures we are taking today are an unalloyed improvement in the lot of children. Let no one in this House believe that this will make the protection of children easier or the lot of abused children in the criminal justice process or in the courtroom context, any less agonising. On the contrary, it will make it significantly more unpleasant for those children.

This is just a stop-gap measure.

If, at the end, the price of protecting children by reference to their age is that we have to introduce after 16 years of resisting such a proposal, a measure of this kind to allow perpetrators to cross-examine children through their lawyers in court on the issues I have mentioned, we will do it.

That is not the reason, it is to protect children.

The public has been asked to believe the falsehood that there was no good reason why this reform was not made, that it was an obvious reform, that it is in the interests of victims of crime, that it is something which was self-evidently a change that should be brought about, those people will learn over the next few days——

That is the spin.

The Fianna Fáil backbenchers are trying to get rid of the Minister.

——and, unfortunately, our children will learn in the coming years, that what we are doing today has been forced upon us reluctantly by the Supreme Court against our better judgment. It is with that very serious warning that I commend this Bill to the House.


I wish to share time with Deputy Jim O'Keeffe.

Is that agreed? Agreed.

I have never witnessed such a display of arrogance from any Minister in this House over the past 30 years.


Hear, hear.

Give us a break.

He spoke for 30 minutes and did not have his script delivered to Members of the House. To have Members applaud him for his performance speaks volumes.

Did Deputy Kenny listen to what he said?

Two issues bring us to the House today, the first is this emergency legislation, the second is the clear crisis in Government and the clearer crisis of public confidence in the Government. All this week the Government's bungling was a degrading political floor show. In the time ahead, more information will come to light which will discredit this complacent and incompetent coalition. At this stage, for most people, the term "Government" is a stretch too far. The country has been convulsed by the events of the past week. Alarmingly, though, the coalition is oblivious. It has absolutely no insight into the scale of the crisis in the public mind or the scale of the incompetence within its ranks.

This is a Government dangerously and damagingly out of touch with the people it is supposed to serve. Even in the past 24 hours, Cabinet Ministers have been slapping themselves on the back for their performance. In the rarefied atmosphere of the Cabinet, it may well be a triumph, but to the rest of the country, in the real Ireland, it is an unmitigated, unparalleled disaster.

The Taoiseach put it best this morning from the safe haven of the UN in New York. He told the country: "Nobody is to blame. There is no reaction to anything". Despite his comments, the rapists of children walk free.

The prison door is swinging off the hinge for sex abusers.

A Leas-Cheann Comhairle——

The country is horrified and it knows it is leaderless.


On a point of order.

Sit down, Deputy O'Flynn.


On a point of order, could we get a copy of the script?

The Deputy is out of order and should resume his seat.

Everyone is talking about this issue in homes, offices and taxis around the country.

Can Deputy Kenny give us a copy of his script?

Deputy O'Flynn is out of order.

If Deputy O'Flynn was in this House long enough, he would know that it is not necessary for scripts to be delivered by Members of the Opposition.


The Deputy might not be in the House for much longer.


The country is holding its breath to see what happens next, some evidence of which will be provided today in the courts. All but the Government are holding their breath. It is different for the Government. As far as the Government is concerned, it is just one of those matters which we should get over. As far as it is concerned, these things happen and it is nobody's fault.

The Minister then decides to up the cynical ante. He raises the red herring of the interrogation of children by his colleagues down in the Four Courts. However, the answer, namely, video evidence, is in his hands. He knows that a report on video evidence is probably covered in mildew on the shelves in his Department. His job is to solve problems, not invent them, and if he is not up to this job, he knows what he should do.

I welcome this debate and the Bill before the House. Last Wednesday in the House, I stated:

Yesterday's Supreme Court decision has serious consequences for the protection of young girls. Today, it is not illegal for a man to have consensual sex with a girl under 15 years of age. This is a grave situation and requires action by the House. As a result of the ruling that section 1(1) of the Criminal Law Amendment Act 1935 is unconstitutional, it is possible that people in prison for having sex with girls under 15 may be able to have their convictions struck down. Protection of our young people must be a priority for legislators.

The Government's reaction was quite incredible and, in retrospect, risible. The Minister wormed his way around the problem in the House and trashed it outside. The Taoiseach was quite categorical about it and stated that nobody would walk free from prison as a result of the Supreme Court decision. How wrong he was. Not to be outdone, the Minister was ad idem with the Taoiseach. His attitude was that there was no crisis, no gaping hole in the law and no need to rush legislation. He believed the Government could carry on regardless and it did, but Fine Gael did not.

Fine Gael put children's safety before political pride. On that same day, we drafted a Bill to close the gap created by the Supreme Court decision. Our Bill was broadly along the lines of the report by the Law Reform Commission. The next day, the Tánaiste issued numerous assurances in House. Fine Gael acted in good faith in respect of these assurances. We put the country's interest before the party's interest and delayed publishing the Bill so the Government could bring forward urgent legislation. I regret the Government's damning breach of trust in this regard.

Within minutes, the Minister for Justice, Equality and Law Reform went on the national airwaves, bantering about the sexual predilections of, in his own words, "randy 23 year olds". He coolly asserted that there was no black hole and that urgent legislation was not required. Fresh from that success, he was ready for more publicity by the weekend. He engineered yet another leak to a journalist. He supplied the journalist in question with a copy of our Bill and misled that individual about its contents. Our Bill was never published.

At the same time, for good measure, he airily floated his personal preferences, which were to lower the age of consent for girls and to legalise sex between young teenagers. It is vital that this House and the country have a robust debate on the age of consent but it is reprehensible for the Minister for Justice, Equality and Law Reform to breach the protocols of the House on draft legislation simply so that he can hit the headlines and divert attention from the problem.

The Minister should heed the saying "be careful what you wish for" since he has since received it with a vengeance. When the Tánaiste preached in this House about the speck in our eye and the need to keep party politics out of the debate, she should have looked, not at the log, but the entire rainforest stuck firmly in the eye of the Progressive Democrats.

The terms of the Bill are broadly in line with the terms of the draft Fine Gael Bill, from which perspective I welcome them. I especially welcome the provisions restoring the protection of young people from sexual predators. I also welcome the tougher provisions in respect of those in authority, which was a central feature of our draft Bill.

Today's Bill effectively raises the age of consent for boys to 17 years. The Minister's proposal to reduce the age of consent would effectively legalise sex between young teenagers who, in my view, are children. The mark of a civilised society is how we cherish our children and their childhoods. Not for one minute are we cherishing our children or the shrinking space of their childhoods by legalising sex between young teenagers.

That is the reality.

At that age, they are physically able to have sex, which they do, just as they are physically able to drink a bottle of vodka, but they do not have the emotional or psychological maturity necessary to deal with the consequences of sex.

Is this about human rights?

I do not mean the obvious consequences of teenage pregnancies or the risk of sexually transmitted infections, which have reached epidemic proportions in the past five years. Gonorrhoea, syphilis and chlamydia have increased by 900%, 1,100% and 1,500% respectively. Rather, I mean the more subtle and sinister damage caused where sex is callous and commodified, relationships are transitory and our children are deprived of any sense of intimacy, tenderness, responsibility or innocence.

As a society, this is a conversation we must have. We could do with a radical reconsideration of what is acceptable and desirable behaviour by parents, children and the Government. Ultimately, it takes not just parents but society itself to rear a child. In a well-functioning society, there is no such thing as other people's children. All of them are ours, but we have lost touch with this view in the past ten years. We must reconnect with it again.

Hear, hear.

Of course, the reality is that our teenagers have sex. However, that it is a fact does not make it right or inevitable, which is the message I want to send to the people. Legalising sex for that age group is wrong. Moreover, it is out of touch with the values and aspirations of the vast majority of parents, who want to live up to their responsibilities to their children and to nurture, value, mind and protect them while they remain children.

In matters of the age of consent, we must remember that the law is not just a decider of guilt or innocence. It is a code for living that defines what we deem as acceptable in the standards and aspirations of our society. As a father, I speak for hundreds of thousands of parents who want to set higher goals for their children. They refuse to accept early teenage sex as inevitable, acceptable or, in some ways, prescribed. In a mediatised world where promiscuity is increasingly promoted and sometimes celebrated, the vast majority of parents want to do what they can to bring their children up and give them the sanctuary of boundaries and the safety net of appropriate controls. The State should do likewise.

Section 5 of the Bill is a concern, as it exempts all females from prosecution. The section is problematic. Last Tuesday, the Taoiseach told the House that we must try to deal with two main issues, namely:

to ensure the laws are not discriminatory on grounds of gender — the 1930s Act was about boys — and to ensure that they provide the defences required by the Supreme Court decision if they are to sustain their constitutional validity. These are the two crucial issues with which we must deal in a way that satisfies the judgment.

The Bill patently fails the Taoiseach's first test, as section 5 is obviously discriminatory. It may be unconstitutional and throws up serious anomalies. It was drafted on the back of a box of Panadol in the Fianna Fáil Cabinet room. Let us be absolutely clear, this is a Fianna Fáil Bill. I said here on Wednesday that when the Minister for Justice, Equality and Law Reform wanted the ultimate, expert legal opinion, he simply looked in the mirror, but I was wrong. Obviously, when he wants that opinion now, he simply looks to a Fianna Fáil committee. He has become a new type of PD, the prostrate democrat, who lets himself be walked all over by his political lessers to stay in office.

The last two weeks have exposed the shallowness at the core of the Minister's politics. Get the retaliation in first, respond off the cuff, trash anyone who disagrees and sneer at anyone who challenges such a political and legal colossus. We are all but knee high to the great man himself. I remind the Minister of the words of a real leader, Ghandi, who said, "It is unwise to be too sure of one's own wisdom; it is healthy to be reminded that the strongest might weaken and the wisest might err."

In the past few days, people have been looking to the Government to protect their children. In recent years, however, they have been looking for something just as important, and every bit as absent — leadership, leadership that acts from courage and conscience, leadership that makes the tough, often unpopular decisions, leadership that is most notable by its absence in this Government.

The Taoiseach says there is no "reaction" in this case. I want the country to be under no illusions. It is not conscience and duty that bring the Government to its senses and to this House today, what brings it here today is public fury. In its own blind panic, it has been found out yet again, only this time the stakes are immeasurably higher. This time the guilty walk free, and hope and innocence are crushed in their wake.

As a legislator, but more importantly as a father, my heart goes out to the children who have been betrayed by the depraved adults in these cases. My heart goes out too to the parents and the families who are trying to put their broken children, their shattered lives, back together again. Betrayed once by adults, they have been betrayed all over again by this State. They have seen plenty of law but no actual justice.

This is, perhaps, the most dangerous time we will witness in this House. I have never seen such a gap between a Government on one side and the people on the other. Perhaps if any good has come out of this, it has given people a sense that in the end, they are the ones who are in power. A year from now they will decide how they want to be governed.

The Minister for Justice, Equality and Law Reform said in the newspapers and here again today: "When the dust settles and the frenzy stops, I will be seen to have acted with competence, honesty and courage." He did not have his script for delivery this morning — that is competence — and I could go into what he has done in the past couple of years. He makes his defence that he did not know and could not be ready and that when this came to a constitutional test, the carriage was between the Attorney General's office and the DPP's office. There could only have been one of two results, either it would be deemed constitutional or not. The Minister should have been ready for the possibility that the Supreme Court would deem that section to be unconstitutional.

The Taoiseach this morning said the Attorney General should have known. Perhaps he has taken out his crossbow because if the Attorney General should have known, so should the Minister. In terms of competence, honesty and courage, the Minister fails on all three counts.

The Minister for Justice, Equality and Law Reform's contribution on this Bill was the most disgraceful, self-serving speech I have heard in this House. The only issue for the Minister appears to be to defend his own reputation or what is left of it. It follows his comments last night about his competence, honesty and courage. Is the Minister living in the real world? Does he realise that he is the only one talking of his competence, honesty and courage? The approach to this Bill is in line with the approach of the Minister and this Government from the time the crisis transpired. It was a matter of sharing the blame and pointing the finger. They brought in the Director of Public Prosecutions, the Attorney General and referred to the then Secretary General of the Department of Justice, Equality and Law Reform from 2002. They referred to previous Ministers in previous Governments, as the Minister for Justice, Equality and Law Reform has done in his speech today. The only people they have not touched on yet are the ushers in the Dáil, and I presume they will be next to be asked to share the blame for the incompetence of this Government and this Minister.

I will touch on one aspect which really concerns me. What I have mentioned so far is what I would expect anyway. I refer to the Cowen logic which was rolled out by the Minister for Finance, Deputy Cowen, yesterday when the Government decided to focus its ire on the Supreme Court. That is dangerous talk. The Supreme Court and the other courts of this country have a job to do under the Constitution. When the finger is pointed at those courts to share the blame for the Government's incompetence, one is in very dangerous territory. I warn the Government off it.


Hear, hear.

I am entitled to my view.

I say to the Government that when it failed to prepare for this kind of contingency, even to see the problem approaching despite clear warnings and signposts, or to implement the recommendations of an important advisory agency in law reform, it is then incompetent.

Would the Deputy have implemented those recommendations?

The Minister of State is not on Matt Cooper's show now.

When the Government failed to put in place basic safeguards in the Office of the Attorney General which were recommended in the wake of similar crises, then it was incompetent. I remind the Government of the case of Brendan Smyth and the review which took place after that particular controversy.

That is correct.

I remind the Government that the review recommended an early warning system relating to sex cases involving children. What became of that recommendation?

What became of it?

In passing, I remind the Government of the consequences of the Brendan Smyth case.

The incompetence of the Government with regard to this issue was further highlighted by the attempt to play politics with this serious matter. A more serious issue could not come before this House. When the Minister represented his own role to the Oireachtas in a bid to save his own skin, blaming everyone and everything instead of dealing with the problem, it was total evidence of incompetence.

As far as Fine Gael is concerned, the major issue from the beginning was that this legal loophole be closed. We wanted a clear message from the Oireachtas to the paedophiles and sexual predators of the country that this legal loophole would be closed. The message would be that from now on, if a person interfered with or abused children, a law was in place to put that person behind bars, for life if necessary in some instances.

I welcome this Bill despite the incompetence of the Government and the rejections of our offers of co-operation, especially at the early stage. I welcome it despite the contemptible approach of the Minister for Justice, Equality and Law Reform to the first Bill we drafted last week. I want the gap, the legal loophole, to be closed. The Fine Gael Party, our leader and I have never deviated from that fundamental concept.

We should touch on another aspect of the issue. The Bill at long last before the House proves that democratic politics work. Despite the fact that we initially had a Government in denial, a Taoiseach who stated that nobody would walk free and a Minister for Justice, Equality and Law Reform who argued there was no gaping hole in the law, we have a Bill before the House which I hope will be law before the night is out. This shows that the strength of democratic politics rose to the test, that the attitude of the Opposition ultimately had to be taken on board by Government and that we will end up with that law tonight.

This law will not be retrospective. The issue has arisen because the law was not reformed in the past. It arises because various signals, including a communication to the Department of Justice, Equality and Law Reform in 2002, were not picked up. It arises despite the fact that the newspapers made the information public last year, and despite an article in the Law Society Gazette in October 2005. I agree with the Tánaiste’s statement that it would not have been easy to tackle the 1935 Act, nor would it have been very popular to do so. Does the Government not realise that the strength of democratic politics to which I referred earlier was based on an all-party approach, the same all-party approach that attempted to grapple with the difficulties under Article 35 of the Constitution? The committee dealing with that issue, on which there is an Opposition majority, was prepared to take an approach on the question of costs that could not be deemed populist. That route has not been followed.

Another aspect has been largely overlooked in this debate about legalities, namely the victims and their parents. At the very minimum I would have expected from the Minister, in introducing this Bill to the House, an expression of regret and an apology to victims, their parents and all the parents of this country, most of whom are thinking: "There but for the grace of God go I". Some, perhaps, will have a more practical appreciation of what it means. An expression of regret from the Government would be appropriate before this day ends.

I am prepared to accept the Bill on Second Stage, because I feel a stakeholder in it. Some 90% of the Bill is based on the Fine Gael Bill.

I thought the Deputy said it was a Fianna Fáil Bill.

The Minister should seesection 5.

I want to see the law enacted and the restoration of the criminal charge of defilement of children under the age of 15. I want to see the introduction of additional penalties for persons in authority. I want to see the maintenance of the age of consent.

I will raise two issues. First, the Minister spoke at length about children being cross-examined as a consequence of certain proposed changes in the law. If the Supreme Court states a law is unconstitutional we must enact a law that is constitutional. However, the consequences to which the Minister referred can be minimised. Why has that not been done? The Minister raised the issue of young children being cross-examined and subjected to ordeals but it will not arise for very young children, who are clearly under the relevant age. I do not want any child to suffer additional trauma. Why have the recommendations of the video evidence committee not been adopted? Why has the report of the expert group gathered dust over the past three years? Why have recommendations that would minimise the trauma to which the Minister referred not been adopted? The Minister must respond to that because it is a further indication of neglect on his part.

Deputy Kenny and I have mentioned our reservations on section 5, out of which serious issues arise. It does not represent the best way of dealing with sex between young people or teenagers, though there must be a provision to deal with it. Following discussions with colleagues in the Labour Party, I was prepared to put forward a proposal to do so.

I am concerned about the constitutionality of the Minister's proposal. There is a considerable danger that its constitutionality or lack thereof may be challenged on the basis that it is not gender neutral. I am also concerned that it could lead to an outrageous position in which girls will be exempt from prosecution for engaging in an act of sexual intercourse but not so exempt for engaging in other sexual acts. It also raises the possibility that boys, particularly younger boys, may be criminalised following involvement with a girl who may be a couple of years older than them. These issues have not been fully appreciated or teased out. For this reason, I have major reservations about section 5 and will propose an amendment on the basis that while my proposal may not be perfect, it offers a more appropriate solution to the problem with which we are dealing than the current provisions of the section.

The amendment proposes to maintain the age of consent, address the issue of teen sex, provide minor penalties for minor offences, hold the line as far as the law and parents are concerned, ensure the word does not go out that the House is sanctioning, approving of or legalising teen sex, deal with the issue in the same manner as the House has tried to deal with other issues such as soft drugs or under age drinking, and try to find a practical solution in legal terms while providing a defence to parents who will be able to tell children that certain activity is not legal, approved of or proper. At the same time, it will provide defences to young girls and, possibly, young boys who should not be faced with the argument that the Dáil has indicated certain activity is acceptable. The approach adopted by the Government in section 5 is not the right one and, on behalf of the Fine Gael Party, I will shortly table an amendment to the proposal therein.

The Minister has many questions to answer and major questions need to be followed up after the Bill is passed. Leaving the political dimension aside, other aspects of the Law Reform Commission report and other issues need to be addressed. Let us, on an all-party basis, put in place a procedure for completing this task in order that the House will no longer be required to deal with serious, complex issues of this nature through emergency legislation.

I ask the permission of the House to share time with Deputy Howlin.

Is that agreed? Agreed.

I agree with the Minister for Justice, Equality and Law Reform on one issue, namely, his view that the adversarial system in this Chamber is an important dimension of our democratic system, allowing Deputies to probe matters of public interest, scrutinise legislation and hold the Government to account. There are rare occasions when behind the robust adversarial exchanges there is a wish on all sides of the House, perhaps unexpressed, to see the Government do well, take control, give wise leadership and exert good authority. The past ten days have been such a period because the parent took over from the parliamentarian on all sides of this Chamber, and all sides, except those elected to Cabinet to serve as Government, appreciated this. That is what was different. Instead of a Government that could grasp what was happening, provide leadership and appreciate public concerns, this Government was seen to be in disarray, at sixes and sevens, unable to understand the import of the unfolding events, and unable to make any coherent response. Members of the House and those outside could not appreciate the response of a Government that told us there was no gaping hole, nobody would walk free, and that we ought to make haste slowly in replacing the struck down section. Meanwhile, the concern on everybody's mind was the protection of our children. This Government showed itself to be more concerned about protecting itself as the crisis evolved than it was about protecting children.

One of the things that makes politics different from other endeavours is that one cannot tell at the beginning of a week how it will unfold and what events will arise. On this occasion, however, it was different. It was not just people on this side of the House who could see what was happening; the backbenchers behind the Minister could see what was happening also. For Government backbenchers, the Minister's response to this crisis was like watching a car crash in slow motion. People could not understand why he could not grasp the import of what was occurring before his eyes. The Minister engaged in laid-back interviews and relaxed exchanges about what could or could not be done. He promised to bring forward a Bill in two weeks' time — not just after the holiday weekend but after the House was going into recess for a week. Then it was proposed that we would meet and if the Bill was ready we would enact it. The public were in disbelief.

Ministers then went into denial. They denied knowledge and said they could not have anticipated the outcome of the Supreme Court decision. The Minister for Justice, Equality and Law Reform told us that neither he nor his Department had any knowledge of this. The Tánaiste told us that the Department had been advised of the proceedings in 2002. The Minister told us that the DPP had carriage of this case. The Tánaiste told us that it was the joint responsibility of the DPP and the Attorney General. The Attorney General had no knowledge, according to the Minister and the Tánaiste. That is despite the fact that his office was concerned with the processing of the case.

In the opening paragraph of his speech, the Minister made a remark about the protection of our children. He then went on for the next 22 minutes to talk about the protection of his own position, self-justification for what happened, and what we might or might not have foreseen.


Hear, hear.

The public wants to know if we can reassure it about the protection of their children from the vile degradations of sexual predators. That was the only issue. There is an important subsidiary issue, which is the position of victims. Victims and their families have received little attention in this debate. There have been vague promises of counselling but one hears mothers of such victims saying on the airwaves that the social services approached them two years later. We saw the two young women on television last night detail with unbelievable courage their unimaginable experience. Little attention has been given to that.

The Government has been scurrying, under pressure from the public, the Opposition and some of its own backbenchers, to find a political response to this situation. What we now have is not what was envisaged when the Minister for Justice, Equality and Law Reform told us, invoking the name of the Chief Justice, to make haste slowly and that this was a complex matter. He has ended up doing a 180° turn on that.

The Labour Party consistently and from the beginning advocated the closing of this legal loophole and the inclusion of the defence of honest mistake to make the legislation compliant with the Constitution as an interim measure that would then enable this House and those outside it to discuss the more complicated and difficult questions associated with the age of consent. The Minister did not do that. He said our Bill was constitutionally infirm because it was not gender neutral. What has he now done? He has come up with legislation that is precisely that — not gender neutral.

He has, quite properly, exempted the young girl who becomes pregnant and becomes a teenage mother from prosecution, which is only right. However, the young boy can serve five years in Mountjoy Prison. No thought has been given to that. It is not gender neutral and if the Minister's original argument is right, for that reason it is suspect constitutionally.

I do not think many backbenchers, who are happy to go home this weekend at least feeling there has been some kind of response to the runaway horse we have seen in the past ten days, appreciate that in this Bill the Minister proposes that we treat with equal seriousness the situation of sexual activity between two young teenagers and sexual activity between a much older and a much younger person. They are not to be treated equally. I do not want to have anything in this House that encourages or approves the sexual activity of teenagers today. However, for us not to recognise it is to fool ourselves and to rush headlong into making a decision that is merely to try to pull back some credibility for the Government.

We ought to have proceeded with a two-stage approach. We ought to have enacted something similar to the Labour Party Bill if not the Bill itself to shut off that loophole and make it constitutionally safe. We could then have had the wider debate. I suspect that, for all his self-image, the Minister for Justice, Equality and Law Reform will not in the years ahead like to have the paternity of this legislation traced for public scrutiny. If he enacts it as he proposes to enact it today, it will be shown to have many anomalies and to have been a political response to a situation that requires a finessed legal response.

The Minister found out this week what it is to be the meat in the sandwich. When he found himself between Clara and Cahirciveen, he soon found out who drives the Government. He soon found out what it is like to be the meat in the sandwich.

That is fantasy.

He brought in legislation that was made up on the hoof. As Deputy Kenny said, the section 5 anomaly was drafted on the back of a piece of paper in the Cabinet ante-room by Fianna Fáil. It was quite unbelievable to see——

That is an invention.

The Minister would know all about inventions.

It is false.

It is nothing of the kind.

It was done at the instigation of the Director of Public Prosecutions.

It is what the Minister told us yesterday.

The Minister invited Deputies Howlin and Jim O'Keeffe to discussions and arranged to meet them again. He went into the Seanad in the interim to tell that House that a broad agreement had been reached. He changed his mind three or four times yesterday. He criticised the House for not noting the two omissions that occurred to him last night, even though we did not see the Bill until today.

I did not criticise anybody.

You are the man who comes into this House——

Is the Minister dreaming again?

——with the lawyers' tactic of building up a straw man and then proceeding to knock it down.

You are inventing a myth that the Fianna Fáil Party initiated this exercise.

Who made the suggestion——

It is complete rubbish.

I ask the Minister to allow Deputy Rabbitte to speak without interruption. I ask Deputy Rabbitte to address his comments through the Chair.

Who made the suggestion to the Minister, which he claims to have so firmly resisted, that he should release the seven prisoners who are properly in jail? Nobody in this House suggested it to him. His tactic is to build up a case before proceeding to knock down a case that never existed.

That is nonsense.

It is nonsense in the Minister's mind.

This has been a shameful performance by the Government.

The Deputy is blustering now.

The Minister for Finance even resorted to condemning the Supreme Court.

On a point of order——

The Taoiseach came in——

If I may——

——this morning like a casual bystander and came within an ace of making the same point.

I would like to make a point of order.

I have very limited time before I hand over to my colleague, Deputy Howlin.

I will allow the point of order.

I wish we had longer.

I will need injury time.

On a point of order, this is the second time this allegation has been made in the House. I did not do what has been alleged. In fact, after it had been communicated on the radio that I had done it——

That is not a point of order.

——a clarification——

That is not a point of order.

It is a Second Stage speech.

——was carried by RTE confirming that I had not done it.

It is not a point of order.

There is no need for the Deputy to make that point because it is not true.

It is not a point of order.

It does not stop me having my own opinion.

I take it that this is injury time.

I will give Deputy Howlin some injury time.

This emergency sitting of the Dáil marks the end of a bleak and depressing ten days for the criminal justice system and for political leadership and authority. To claim that last week's Supreme Court decision came like a bolt from the blue is frankly unbelievable and unacceptable. We have walked similar paths before and were promised that systems had been put in place to ensure that a Brendan Smyth-type fiasco could not happen again, but it has happened. I advise the Minister to read this morning's Irish Examiner, which outlines in some detail the sequence of events that led to the fall of a Government on that occasion. This crisis is immeasurably more serious in scale and consequence — serious and all as that crisis was — but it has not yet been the subject of such political accountability. We have just one priority today — to reinstate in a constitutionally robust way the crime of unlawful carnal knowledge of a minor. We need to make robust, good, strong and clear law during this sitting. It is not a question of someone’s reputation or anything else.

Since the Supreme Court delivered its original judgment, the Labour Party's position has been that temporary legislation should be introduced to close the loophole in the 1935 Act. We said from the beginning that the priority should be to provide support and counselling to the victims of this terrible abuse and their families. They needed to be informed, when cases were collapsing, of the alternative prosecution strategy that was to be put in place. They should have been advised in advance that the perpetrators of their wounds were potentially to be released on to the streets, rather than having to read about it in the Sunday papers. We suggested that when that had been done, there should be a careful and reasoned debate on the other important issues that most assuredly and certainly would arise.

From the outset the Government's response has been appalling. Assertions made by the Taoiseach and the Minister for Justice, Equality and Law Reform have simply been wrong. The Minister told us confidently there was no gaping hole in the law and no need for emergency legislation. The Taoiseach even more confidently told us no one would walk from the courts. After a week of indecision, the Government belatedly decided to act. Last week both main Opposition parties produced draft Bills and pleaded with the Government to take action. Late last night we eventually received the Government's Bill.

Unfortunately the Government has rejected Labour's careful, staged and proper approach. Instead, the Minister for Justice, Equality and Law Reform has introduced a single measure that goes far beyond the requirements of closing the loophole in the 1935 Act. It is a permanent measure without any sunset clause. If this approach is to be taken, it must be done with great care. In several fundamental areas, the Bill falls short of that standard. Thoughts that occur to the Minister during the night cannot end up as amendments. There can be no invitations to this side of the House to think between now and 2 o'clock as to what else we might like to add.

Since the Supreme Court decision on Tuesday last week regarding the Criminal Law (Amendment) Act 1935, I have argued for a two-phased approach. A short Bill should be introduced to close off the specific loophole identified by the Supreme Court and to provide immediate protection for young people who might be prey to sexual predators. We must ensure those responsible for such heinous crimes are brought to account.

Rushed law is normally flawed if not outright bad law. This Bill is certainly flawed. It attempts to address the requirements of the constitutional decision of the Supreme Court. However, the Minister is inserting fundamental flaws which the House will later regret. The Minister is engaging in spin by suggesting the Supreme Court is putting children in the dock by exposing them to cross-examination.

I never used that phrase.

It is the Government that is putting children in the dock for acts which this day are not criminal but which will be by this evening. It is not illegal today, nor has it been in the history of the State, for a 16 year old boy and girl to engage in consenting sexual acts other than intercourse. This is about to change. By this evening it will be a serious criminal offence that might have these 16 year olds facing five years in jail and being placed on the sexual offenders register. It is no use for the Minister to tell the House the DPP will not prosecute. As legislators we make law, we do not tell the prosecution authorities to ignore it.

The Bill is not gender neutral and fails to correct all existing gender differences in the law, despite this being the golden rule that the Minister applied to the Opposition last week. From his lofty perch, the Minister said our Bill was unconstitutional because it sought to maintain the gender differences in the 1935 Act. Under the Punishment of Incest Act 1908 there is a heavier penalty for incest with girls than boys. The Bill does not address that.

What about the two-phased approach?

The Bill introduces a confusing anomaly which may undermine the law of incest in that incestuous intercourse under this Bill with a child over 15 years is punishable with ten years, which is less than the protection offered by the law of incest.

The Bill is presented as a protected measure but it decriminalises a number of acts with children that are currently offences. For example, if a 60 year old sexually interferes with a consenting 15 year old boy but does not preform penetrative sex, he is guilty of an offence of gross indecency under section 4 of the Criminal Law (Sexual Offences) Act 1993. However, the section is being repealed without replacement.

It is a sexual assault carrying a sentence of 14 years in prison. The Deputy should check the law.

The Minister should listen to the argument and debate the point. He should give us the time to ensure-——

It is a sexual assault carrying a sentence of 14 years in prison.

The Minister is so knowledgeable about everything.

The Deputy is exposed for knowing nothing. He is just posturing.

The Minister should allow the Deputy to continue.

The Deputy's advisers are wrong. It is a sexual assault carrying a sentence of 14 years in prison.

One day we can all go home and let the Minister who knows everything and who is not only the authority of the Supreme Court and the law but also the people, to dictate by law.

He knew nothing last week.

For a 60 year old man to engage in that act with a boy is a sexual assault carrying a sentence of 14 years in prison.

The Minister will defend creating this gap in the law.

The Minister should use his personal half hour for the amendments.

Microphones should not be turned on for interruptions.

Unless the Deputy is making them.

The Minister should allow the Deputy to continue.

The people want to hear us debate the issues and not defend our inflated egos, as some have done.

The Deputy should tell the truth about the law. It is a sexual assault carrying a sentence of 14 years in prison for a 60 year old man to indecently assault a young boy.

The Minister is little short of a disgrace.

The Deputy is shorter than me.

The Minister should withdraw that comment.

I will not deign to respond to a personal insult from a man who is so bereft of any authority, moral or otherwise, at this stage.


Hear, hear.

The Minister's credentials as a champion of equality fall entirely under section 5. After the rush to finality is over and the facts emerge from the fog of Government incompetence, the parents of Ireland will be in for a major shock when they realise the Government is criminalising boys and not girls for consensual sex. The Government seems to think that the rights of boys are of lesser order than the rights of girls. That cannot be right.

That was always the law.

It is not right. Will the Minister listen to the argument and then debate it on Committee Stage?

What happened gender neutrality?

What about a two-stage process?

Inevitably, this discrimination will give rise to a constitutional challenge or a challenge under the European Convention of Human Rights.

As the Minister has been told.

On the basis of the case law of the European Court of Human Rights in the Dudgeon and Norris cases, where the court rejected the idea that certain acts which were lawful for heterosexuals were unlawful for homosexuals, a strong case can and will be made for the proposition that it is illegal to provide that an act which is lawful for a girl is unlawful for a boy.

Then the Deputy's Bill is unlawful.

Our advice is that this outright discrimination will fail the test of constitutionality and of compliance with the European Convention on Human Rights.

The Deputy has four minutes remaining.

Does that include injury time, Sir?

On that basis the Government is just setting up the law, on which the public depends for certainty, for further crisis and challenge. That is above and beyond the bizarre and absurd position that girls will be criminally liable for foreplay but not for sex. To put it bluntly, the incoherence behind the current proposals is demonstrated by pointing to three conflicting propositions, each of which the Government is seeking to advance in this Bill. I will give an example. I apologise for being so explicit, but it is necessary. If two 16-year olds engage in sexual intercourse, the boy is guilty of a serious offence while the girl is guilty of nothing. If the girl performs oral sex on the boy, they are both guilty of a serious offence. If the boy performs oral sex on the girl, then neither of them is guilty of any offence.

This is great legislation.

Even more bizarrely, if attempted sex——

The Deputy should read the Bill.

The Minister, Deputy O'Donoghue, should read the Bill himself. This is a fact. I know it is a surprise to him.

He should look at the definitions in the Bill.

Even more bizarrely, if attempted sex takes place between two 16 year olds, they are both guilty——

That is correct.

——of a serious crime, but if actual sex happens, they are not.

Deputy Howlin is wrong again.

It appears that girls can only achieve innocence if they perform full sex.

I wish to raise another anomaly I have seen in the Bill. If the defendant believes a 14 year old is 15, it is a complete defence to a charge under section 2. Since section 3 is limited to sexual acts with persons over 15, a defendant cannot be charged with an offence under that section. Therefore, if somebody is accused of a sexual act with somebody under 15, and he makes the case that he thought the girl was 16, if he is believed by the jury it, is a complete defence and he cannot be charged with the other offence, that he has committed a sexual act with somebody between 15 and 16. I do not believe that is what the Minister intends but it is one of the consequences of the Bill and I will be seeking——

That is not correct.

The Minister should think before he mouths off.

So should Deputy Howlin.

I know Deputy Howlin is wrong on that.

That is the advice I have given him for the past week.

The Minister was wrong last week.

Deputy Finian McGrath is wrong every week.

I also wish to refer to section 16 of the Criminal Evidence Act 1992. The Minister told the House at the end of last year virtually what he told us this morning. He sat on this proposal for years. Nothing has happened. Apparently, he telephoned the HSE this morning and was told it would come forward with its proposals shortly. On 29 November last year he also informed the House that the HSE would come forward with its proposals shortly.

While we do not have video evidence ready, the sort of cross-examination to which the Minister referred will happen. For all these reasons I have the greatest concern about this Bill. In conclusion, because the heart of this Bill is a proposal that I and the Labour Party have advocated from the outset of this crisis to plug a loophole that must be plugged to protect children, we will not obstruct its passage but we would have much preferred to have the blocking of the loophole in place immediately and a quiet time of reflection to involve the Rape Crisis Centre, concerned bodies, the Ombudsman for Children, and much greater consultation in the other matters that will now form a corpus of laws that will affect children and adults for years to come.


Hear, hear.

I wish to share time with Deputies Ó Snodaigh, McHugh, Connolly, Cowley, James Breen, Harkin, Catherine Murphy, Healy, Finian McGrath, Gregory and Joe Higgins.

Is that agreed? Agreed.

We must pass a law today but it must be good law. The Minister defended his record and that of the Government by saying they were competent, honest and truthful. I disagree with this assertion. The Government's competence was called into question by the fact that it was not prepared for this situation. The Minister should have been prepared when the High Court challenge was launched in 2002. One should hope for the best but prepare for the worst and I am not convinced he was prepared for the worst.

The Minister's honesty has been called into question. The Taoiseach asserted that nobody would walk free from prison but someone has done so. The Minister's truthfulness has also been questioned. This morning, he has blamed everyone in this House but himself. It is time for him to take some share of the blame in this affair.

Enshrining the best interests of the child in the legislation passed today is crucial. The Green Party proposes that this be explicitly placed into the law. Unless the best interests of children are a priority in the law, there is a very real danger that their interests will be placed second. We will put forward this amendment today.

Given that we have had sight of this legislation for less than 24 hours, it is crucial that we put in place a sunset clause in respect of it. I propose that the legislation lapse in two years' time. Rushed law is not good law. We have an onus to revisit the Bill in two years' time. Having a period of less than 24 hours in which to review legislation is dangerous. The Minister acknowledged that other issues have been highlighted and have come to his attention in the last few hours. We should ensure this legislation is revisited in less than two years.

I am deeply concerned by section 5 of the Bill. I am concerned by the inequality enshrined in the legislation whereby we will criminalise boys but not girls. I am also very concerned about the absurdity of not criminalising girls who engage in penetrative sex but criminalising them if they engage in other forms of sexual activity. What kind of message does this send out? What kind of Stay Safe programme is envisaged whereby a girl will not be criminalised if she engages in full penetrative sex but will be criminalised if she engages in any other type of sexual activity? This provision must be reconsidered. In light of the sexual awakening of 15 and 16 years olds, we should send out a very strong message not to engage in full sexual relations, yet this legislation provides for the exact opposite by criminalising other forms of sexual activity but not penetrative sex.

Section 5 is an absurdity. I am in possession of advice from the Ombudsman for Children in which she specifically states that section 5 is superfluous. I call on the Minister to withdraw this section. He still has the discretion of the courts and the discretion of the Director of Public Prosecutions. If the Ombudsman for Children is advising the Minister to drop section 5, he should seriously consider her advice.

The Director of Public Prosecutions recommends it.

Look where the Director of Public Prosecutions got us.

He did not see this coming.

I also suggest that we look compassionately at 15 and 16 year olds who engage in sexual activity. There is a need for some kind of "Romeo and Juliet" clause. Such a clause would put in place a very minor penalty for those aged 15 and 16 who engage in sexual activity with someone who is no more than two years older than them. We must examine this issue very carefully. An easy solution of criminalising such activity is not the right way to proceed. If we criminalise such activity, it should be a very minor penalty. I suggest that the penalty might involve making the individual in question subject to community service. Such community service could simply involve engaging in some form of sex education, which would be a much more appropriate penalty than jailing someone.

We need to pass a good law today. I hope the Minister will allow time for the discussion on and agreement of amendments, as it is crucial that such occurs. In recent days, there has been a lot of moving left and right, forwards and backwards to try to deal with this issue, but people are walking free from court. They will walk free this evening and will be able to engage in all types of sexual activity without appropriate penalties unless we pass legislation.

While I support the Minister in trying to pass legislation today and I support the main thrust of what has been proposed, we must revisit the issue of 15 year olds and 16 year olds. The principle of equality between the sexes must inform legislation in this regard. It is not good to say there are greater consequences for the girl in that she may become pregnant. In 2006, the male must take the same sense of responsibility and share in the same duties of parenthood as the girl. If the Minister attempts to sideline this matter in the legislation, it will send the message that the male should not share in the responsibility. We must re-examine section 5 and remove it completely as it sends the wrong message.

We must include a sunset clause in the legislation. If the legislation is evolving by the hour and issues not previously considered are being brought before the Houses in the 11th hour, it makes good sense to carefully consider how to proceed. The legislation must be passed today with three amendments, namely, the best interests of the child should be incorporated therein, section 5 must be deleted and the legislation must be reviewed within two years.

Tá an Dáil agus an Seanad ag teacht le chéile inniu chun bearna dháiríre reachtúil a líonadh, ní toisc bhreithiúnas na Cúirte Uachtaraí mar a dúirt an tAire níos luaithe, ach toisc gur theip ar an Rialtas seo agus ar Rialtais eile roimhe déileáil i gceart leis an rud a tharla an tseachtain seo caite agus ullmhú dó. Tá an milleán ar an Aire, an Rialtas agus chuile Rialtas ó 1990 ar aghaidh nár dhírigh ar an chás seo.

The chief law officer of the State, the Attorney General, sits at the Cabinet table and the Government can avail of a battery of advisers and experts on legislation. The Law Reform Commission report was published in 1990 and, in an article published in 1995, the current Minister for Justice, Equality and Law Reform, Deputy McDowell, acknowledged the commission's call for a change in the law. The Tánaiste admitted that the Department of Justice, Equality and Law Reform was aware in 2002 of the constitutional challenge to the 1935 law. While it is claimed that a breakdown in communications meant that the current Attorney General was not informed of the case, his office knew, as did the Office of the Director of Public Prosecutions, which was represented in the case.

It has been correctly pointed out that other laws, including those on rape and sexual abuse, still protect child victims and all victims of these crimes, but the 1935 law provided a readier means of securing convictions and set down stricter sentences. It was seen as a greater deterrent. Therefore, while it is understandable that the DPP continued to prosecute under the law, it is inexcusable that the commission's report was not heeded and preparations were not made for the contingency that the 1935 Act would be struck down. Successive Governments failed to grasp the nettle of reform or provide the leadership required. It is ridiculous for the Minister to claim that nothing could have been done because it would have undermined the State's case in the High Court and the Supreme Court. This Bill was drafted in a few days because the Government came under enormous pressure here in the Dáil and from the public. The work should have been done already. Since last July when the three Supreme Court judges ruled on this case, the Government should have predicted what was coming down the tracks.

The Minister for Justice, Equality and Law Reform can be accused of many things but no one can accuse him of modesty. He is reported today as saying: "I am confident that when the dust settles, and the frenzy stops, I will be seen to have acted with good authority and with competence, honesty and courage". We will return to that later.

People are outraged at the lack of good authority, the incompetence, dishonesty and political cowardice of the Minister and his Government. The victims of Mr. A, who walked free, and of others, who may yet walk free, have been devastated. Other victims are now living in fear. The knock-on effect may prevent victims of abuse from coming forward.

Many people today will rightly exercise their right to protest outside the gates of Leinster House and in other parts of the country at 1 p.m. I commend them on doing so. It is an expression of the depth of feeling on this issue. In common with the other Opposition parties, Sinn Féin is facilitating the passage of this legislation to cover the gap in the law. The law must be put right immediately to protect children under 15. It must, in line with the Supreme Court judgment, allow for a defence of mistaken belief as to age on reasonable grounds.

We also accept it is not possible in what is essentially an emergency Bill to deal with the wider issues. We are concerned, however, that if this matter is not also addressed, we will compound the current situation whereby a 16 year old boy who has consensual intercourse with a 16 year old girl is guilty of a crime and criminalised. That position is untenable and we seek that it and related issues be addressed in law as soon as possible. To that end, we have pressed for a debate on these issues and for the necessary wider public consultation to commence in the coming weeks. We should be using the extra sitting week next week to start that debate properly. The neglect of successive Governments has created a situation where this legislation is being rushed through today. We must be sure that this is a first step, a temporary measure pending comprehensive and wide-ranging legislation.

I am especially concerned about the effect of section 5, which states that a female child under 17 shall not be guilty of an offence under this Act by reason only of her engaging in the act of sexual intercourse. That section negates the overall intent of the Bill, which is presumably to be gender neutral. Like other Deputies, I believe this section will be open to constitutional challenge and could lead us into further legal quagmire. It highlights the need to address the issue of consensual sex between teenagers. It is a reality in society and the answer is not the criminalisation of teenagers.

The Minister has stated that section 5 was included so that single motherhood would not be stigmatised because, otherwise, every 16 year old who has a child or is pregnant would have committed an offence or be deemed a victim of rape. This is illogical. Under this Bill a pregnant 16 year old will be deemed a victim of rape and the father of the child, no matter what the circumstances of the conception, is deemed a criminal. Section 5 should not be included in this Bill.

There should be a time limit on section 3. We propose that it will not stand after 18 months unless a resolution is passed by both Houses of the Oireachtas to continue it. This will ensure the wider issues are provided for in legislation and that the next 18 months will be used to debate the issues and prepare for proper legislation to deal with this issue.

I said I would return to the Minister. He believes he is infallible, but I must burst his bubble. Not only is he fallible, he is human.

That is not right.

Many people may not believe that, but I do. As a human, the Minister will have to suffer the consequences of his actions and failures.

Only a Sinn Féin man could come out with that.

The honourable action in this case is that the Minister resign. I admit that I am human and fallible, I make mistakes and I am not always correct.

Hear, hear.

I do not have the arrogance of the Minister for injustice and inequality.

The Deputy's friends wear balaclavas.

If the Minister were not so busy running around having cosy chats with private investigators, leaking documents to his buddy journalists, being involved in an anti-republican crusade——

We are back to Frank Connolly.

——he may have had the time to look at an issue he highlighted in 1995. He might have dealt with it before the debacle we have today. The Minister must resign if he has an ounce of humility or decency with regard to his action or inaction.

Hear, hear.

I also question the suitability of the Taoiseach to continue in office. When confronted with the biggest legal crisis facing our society for many decades, he has left the country in the hands of an incompetent Minister. He has left the Minister to address the issue. That is incompetence and calls the judgment of the Taoiseach into question.

A Aire, bí onórach agus éirigh as an phost anois.

A number of Deputies are sharing time. The first is Deputy McHugh.

The issue we are discussing today is the most serious matter to come before this House since I was elected a Member. The handling of the issue by the Minister for Justice, Equality and Law Reform is the most incompetent that I have witnessed since I became a Member.

I do not believe the Minister, for a number of reasons, when he states that he was not aware of the issue. The matter has been before the courts for a number of years. As a senior counsel, a former Attorney General and the current Minister for Justice, Equality and Law Reform, he had to know that this was not a trivial matter, such as not having a light on one's bicycle. This was a case to test the constitutionality of a specific law.

The Minister had to be aware that a case was being taken. He is the Minister for Justice, Equality and Law Reform and it is his job to know. The Minister wrote an article on the issue himself for the Irish Independent in 1995. Is he now stating he is suffering from amnesia?

The action we are being forced into today as a result of the Minister's lack of preparedness will probably result in many more innocent victims like those going through a nightmare at present because of this debacle. There will be suffering because we do not have time to give this legislation full consideration.

I welcome the opportunity to speak today. This is the second time in 12 months when legislation has been seen to be flawed. The legislation has affected two of our most vulnerable groups in society, the young and the old. Worse still, in both cases it was known for a number of years that the legislation was flawed.

The Law Reform Commission proposed 11 years ago a defence of reasonable mistake of unlawful carnal knowledge, and it has gathered dust. All Governments since then must stand indicted for the complacency and sheer criminal neglect of our most vulnerable children. The nightmare scenario continues to unfold for the victims of sex predators in this legal debacle. Their unspeakable ordeals are being visited once again in the full glare of media and public attention.

We must try to get the message out to the victims to come forward and give evidence. They should know they will be protected. We must reassure victims that offenders will be kept where they belong — behind bars.

In the name of the Independent Deputies of the Technical Group, I asked Government last Wednesday to enact within 48 hours this necessary legislation and not to wait until next week, as had been proposed by others. This was in order for our children to be safe this weekend. This Bill is by no means perfect, but we must act now and do our best to come back to the matter again as necessary. In this regard, long overdue video evidence taken from children is immediately necessary.

I have also called on the Tánaiste for an audit of other potential loopholes which would benefit sexual predators and a review of the counselling and psychological supports for child victims in particular. This case exposes the uncaring and incompetent underbelly of a Government which has lost touch with the people. The consequence is that we are today trying to pick up the pieces of shattered young vulnerable lives which this Government has cruelly failed to protect.

This incompetent Government has crossed the Rubicon when it cannot protect our children. I represent the people of Mayo. The Minister for Justice, Equality and Law Reform, Deputy McDowell, should resign because of such disservice to the people. The Brendan Smyth case brought down a previous Government. This is much worse. The Minister, Deputy McDowell, must resign now.

Hear, hear.

The Deputy should read the Constitution.

I welcome the Bill for the most part. While some fear that any attempt to protect our children might be diluted because of the Supreme Court decision, this Bill helps dispel many of these fears. In the Supreme Court ruling, Mr. Justice Hardiman stated that the defence should be allowed where the defendant has been positively and convincingly misled, perhaps by the victim herself. As a legislator, I am glad we will now take on board such issues and ensure that skilled lawyers do not easily find further loopholes that might result in more convicted sex offenders being freed prematurely.

That clause of the Bill which covers the defence of believing an alleged victim to be of the age of consent is a concern to me. In such a case the court shall have regard to the presence or absence of reasonable grounds for the defendant so believing and all other circumstances. This gives licence to defence lawyers for rigorous cross-examination of every aspect of a young teenager's life.

Such examination in the austere and imposing surrounds of a court room may cause such damage as to further discourage the reporting of such criminal behaviour in the first place. I ask that, in such cases, reform of court dress and manner, the removal of robes and wigs, and the consequent modernisation of court procedure be expedited, including the roll-out of video evidence facilities, which have a major role to play in such cases.

A number of questions have been asked today but I have just one. Where does the buck stop? The Minister boasted to the House that he had made the right decision. As recent events show, he made the wrong decision. It is as if he was saying he was right all along but that, unfortunately, the Supreme Court was the problem. Everything was going well until it interfered. As a defence from a Minister for Justice, Equality and Law Reform that is unbelievable.

That is an extraordinary statement.

Now the Minister lectures us about the difficulties and risks involved in the Bill. He says that young people will be traumatised in court and that it will not be gender-neutral. It is because of his inaction that we find ourselves in Dáil Éireann today, struggling, panic-stricken and rushing through legislation hoping we get it right, while the Minister tells us that when the dust settles he will be proven right. This should not be about the Minister, it should only be about protecting children.

We were assured last week that no criminal would walk as a result of the Supreme Court judgment, and that the crimes of sexual assault and rape were still on the Statute Book. I listened to the Minister this morning and ask where he was last week when we received replies from the Taoiseach and the Tánaiste. He tells us that he knew immediately that this decision could have extreme consequences involving the possible premature release from prison of certain criminals. He defined the difference between a case prosecuted as a rape case and one as statutory rape, where the issue of consent is dispensed with. We knew that, which made the replies so insulting. Such contradictions raise issues of competence. The primary concern of this legislation must be the protection of children who are now exposed.

There are flaws in the legislation. The correct approach would have been to plug the gap and return with more thoughtful legislation. I regret that approach has not been taken.

I have never witnessed such a display of arrogance, dishonesty and double talk as I witnessed today from the Minister for Justice, Equality and Law Reform. He has refused to accept any responsibility for the appalling vista that has opened up or any regret for the horrifying shambles surrounding the law on statutory rape. Last week the Minister told the House he knew nothing about the issue. This morning he told us that doing nothing was a deliberate policy of his Department. Last week he told us there was no crisis, no gaping void. Today he told us he immediately recognised the serious consequences of the Supreme Court decision.

I have very serious misgivings about sections of the Bill. It is not gender-neutral, it has an in-built inequality and will criminalise 16 year olds engaged in consensual sexual acts. This Minister and Government are out of touch with reality, tired and too long in power. The Taoiseach should take his responsibilities seriously, sack the Minister and face the people in a general election.

I welcome the opportunity to speak on the Bill, despite the fact that ten Independent Deputies were only allocated a total of ten minutes' speaking time, which shows our citizens how seriously this Government and the Minister for Justice, Equality and Law Reform treat the issue. I support the legislation in an effort to try to resolve the child protection crisis at the moment and in support of the victims of child sexual abuse.

The Minister for Justice, Equality and Law Reform did not act with good authority and competence in the handling of this issue. If it were any other Minister, he or she would be gone in the morning. This is not the first time he has acted out of order and in a manner that damages the integrity of his office.

I challenge the Minister to step down. I do not do so lightly but for four sensible reasons. First, the victims and families were let down by the State and our justice system. Second, he has presided over a catalogue of administrative and political failures. Third, the July 2005 case was a clear signpost of what ultimately happened yet no action was taken. Finally, there has been gross negligence over laws concerning sex offences. The Minister has lost the trust and confidence of most of our citizens and should step aside.

During the past week, I have been asked by many constituents to place on record their sense of outrage at the negligence and incompetence of the Government in its failure to respond to this issue when the warning bells first sounded and so pre-empt the release of criminal predators of children on our streets. No other single issue — there have been many examples of ineptitude in this Government's term — has so undermined the confidence of the public in the political and legal process. This shameful episode will not be forgotten by the electorate. It is, yet again, evidence of a Government that is terminally out of touch with the concerns of the people.

Nothing is more fundamental to the democratic and political process than the manner in which we ensure full and proper protection for our children. When any Government fails in this fundamental respect it is time for it to go. While the scale of public outrage at Government ineptitude has forced today's legislative action, the Bill is flawed and potentially problematic.

Decent people, young and old, throughout the State are outraged that a male of more than 40 years who grotesquely abused a child of 12 years should walk free from jail. Anybody guilty of abusing a child should be in jail for a very long time. However, in hammering down that these abusers of children should go to jail for a very long time, as is correct, the Government should not include in the same Bill a completely different provision on an entirely different issue which would, for example, make criminals of teenagers who have intimate sexual relations with each other by consent. It beggars belief that it has reintroduced a provision inserted in a Bill 70 years ago which will result in youth being criminalised across the board. It should not have rolled in with a law aimed at ensuring that abusers are sent to jail and kept there, a provision which criminalises youth engaged in the normal intimacy that takes place among older teenagers.

I have tabled a number of amendments which would not criminalise consensual relations between, for example, 16 year olds. The Government should accept these and similar amendments. If it does not do so, I will vote against the Bill even if I must stand on my own.

It is a disgrace that the Government would treat young people in this way. The 15, 16 and 17 year olds of this country are capable of thinking for themselves and engaging in wide-ranging debate. Instead of rushing in here to opportunistically cover over its recent incompetence, the Government should bring these young people and their parents into the debate and listen to their voices. While I agree that abusers of children should be sent to jail for a long time, it is a disgrace that young people involved in consensual relations should be placed in the same category.

I propose to share time with the Minister for Arts, Sport and Tourism, Deputy O'Donoghue, and the Minister for Education and Science, Deputy Hanafin.

Is that agreed? Agreed.

The point of departure in this debate must be what we have all heard in recent days, namely, the voices of the large number of victims of sexual crimes who live in our country and their relatives and close friends and the pressure and trauma they are put under as the result of the repeated public discussion and debate about these matters. All Members owe a duty to these individuals. During this debate, I have heard political charges and counter-charges and the din of noise and barrack-room "lawyering", none of which helps the victims of the offences in question.

I must single out the Leader of the Opposition, Deputy Kenny, because he puts himself forward as an alternative Taoiseach. He came to the House this morning and said the Government was responsible for one man, and possibly six men, walking free. That is simply untrue. There is nothing which the Minister for Justice, Equality and Law Reform or the Government could have done before, during or since the Supreme Court judgment that would have affected that position. It is exclusively a matter for the courts, which is being determined in the context——

It was known about two years ago.

Perhaps the Deputy does not like what she is hearing but the matter is being determined in the context of Article 40 proceedings.

Deputy Brian Lenihan is the Minister for Children.

I assure the Deputy I am very conscious of my obligations as Minister for Children.

We are entitled to speak here.

I am very conscious of them. Deputy Kenny will have to improve his performance, however, because he has indicated on the floor of the House — not once but twice — that the Government bears direct responsibility for any such release.

He is accurate.

The responsibility rests with the courts and any potential Taoiseach should know the precise division of responsibilities in this State between the courts and the Oireachtas.

Hear, hear.

He has shown himself to be ignorant of it but did that to get a cheapsoundbite on national television.

That is both unnecessary and inaccurate.

I am sorry but I have seen him do so twice.

It does not become the Minister of State.

The first time I overlooked it but it was repeated at the beginning of an otherwise good speech this morning. I am entitled to comment on what is said in this House.

Another senior counsel who knows all but knows nothing.

No. I have never used——

Can we have the protection of the Chair, please?

The Minister of State without interruption

The Deputy will have to listen to the arguments and she will have plenty of time to comment on them. In addition to all of that, we have had the constant attempts to impugn the integrity, honesty and competence of the Minister for Justice, Equality and Law Reform. If one looks at the volume of material he has put on the Statute Book in recent years, as well as the volume of material he will have put on it by the time this Government has completed its work, I have no doubt history will record that he has been an outstanding Minister for Justice, Equality and Law Reform.

The question of the victims is a fundamental one to which we should have regard in this debate. I have arranged with the Health Service Executive that official counselling should be available to all victims and their relatives of persons where there is any possibility of a release. The Garda Síochána has communicated to those persons the availability of the HSE for counselling. Earlier today, I contacted the one person and her family who have been affected already — the victim in the Mr. A case — to arrange an appointment with the victim and her mother. It is a fundamental matter in this debate.

It is a bit late.

I do not ring up Garda stations to find out confidential Garda information.

No, he just leaves committees to do the work.

The Minister of State should ask the Minister to do it. He would find out for him.

I wish to turn to the merits of the Bill. It is an important item of legislation into which the Government collectively has put much work. The advice of the Minister and the Attorney General has been gathered in connection with it. It restates the basic position set out in the 1935 Act but in a way that protects both boys and girls. The Government examined the option of a minimal Bill which would simply restate the existing 1935 provision in terms of girls only. However, if we were to go down the route advocated by the Labour Party, we would not be protecting young boys in equal measure against sexual predators. The thinking that existed in 1935 was characterised by a former Chief Justice who said that the purpose of the Act was not alone to protect young girls from boys but to protect them against themselves. That is not the contemporary thinking, however, on the protection of young persons from child sexual abuse.

Reference was made to the Ombudsman for Children but in fact the first and most fundamental recommendation she made to the Government was that we should not discriminate in relation to whom we protect. She welcomed the extension of protection to both genders.

So why is the Government doing it? It is a simple matter. It is not gender neutral.

I will deal with that matter.

We need an explanation.

As I said earlier, our point of departure has to be child protection. The Bill now protects the young boy in the same way as the young girl is protected. That is the point. The younger boy now has the same protection——

——that the younger girl had under the 1935 legislation and will have with this legislation.

Does that include the young boy who makes the young girl pregnant?

The Minister of State without interruption please. Deputies Burton and Lynch should speak through the Chair.

Reservations have been expressed that a female child under 17 years of age will not be prosecuted in respect of sexual intercourse. Deputy Cuffe raised this issue directly in the course of the debate. The Ombudsman queried that decision and queried whether reasonable grounds or justification exist for the differentiation. She did not suggest we should not do it. I want to put that on the record of the House because Deputy Cuffe suggested otherwise. I appreciate, given the short time Members have to prepare to deal with this legislation, how a simple mistake like that can be made.

There are reasonable grounds and justification for the differentiation. There is the practical argument which the Director of Public Prosecutions communicated to the Government, namely, that were a female in that position criminalised, she would become an accomplice to the crime and would then, in the case of a prosecution of a person, raise the evidential threshold to a substantial degree. That is a practical consideration justifying the differentiation.

There is also the issue already referred to by the Minister of the stigmatisation of a mother who is proceeding to term and delivering a child. That mother, as she goes through pregnancy and delivers a child, is clearly cast in the role of being a public criminal by the legislation. I certainly would not——

What about teenage fathers?

The Ombudsman for Children said section 5 was superfluous unless the Government takes on board her other recommendations.

The Minister, without interruption.

The Deputy would do well to remember that there are many fathers who are well able to conceal themselves.

They will be more likely to conceal themselves as a result of this Bill. It will drive them underground.

There is a fundamental differentiation in nature, which is reflected in this Bill.

With regard to the position of the Labour Party, it is extraordinary that its members invite us to pass legislation which will only protect boys and then object to the fact that the legislation contains a more limited exception in regard to gender neutrality. There is total inconsistency in that position.

The Attorney General has been consulted on this Bill.

A temporary Bill will sort it out.

It is not a temporary Bill.

What is it?

It is a Bill of the Oireachtas and we are taking full responsibility for it as such. The term "emergency Bill" has been bandied about this House and elsewhere.

The Minister of State does not know what he is talking about.

This is not an emergency Bill under our constitutional system. It is a Bill of the Oireachtas. An earlier signature motion will be tabled in the Seanad and the President will be invited to consider whether she should sign the Bill at an earlier stage. It is not an emergency Bill. It is a Bill of the Oireachtas like any other.

The Government took great care in preparing what is before the House today. It had to. There was a very definite lacuna and we are satisfied——

What does the Minister of State mean by "lacuna"?

I mean a gap. There was a gap. We are satisfied that this Bill will fill that gap.

The Minister of State should say what he means. Most of us do not understand the word "lacuna". The people do not understand it.

Most Members know what "lacuna" means.

The Minister should not hide behind Latin.

This is pitiful.

There is a gap, which is being filled by the Bill. I welcome the fact it provides comprehensive protection for all children under the age of 17.

Can I respond to the Minister's remarks?

No. I call the Minister, Deputy O'Donoghue.

Deputy Cuffe can respond on Committee Stage.

The founding fathers of this State, through the Sexual Offences Act 1935 dealing with the question of unlawful carnal knowledge of a girl under the age of 17 or a girl under the age of 15, in their wisdom decided that a defence by an accused person to the effect that he honestly believed the girl was older would not stand. That continued to be the position in the intervening decades. It is the case that in 1990 there was a Law Reform Commission report and that in 1998 there was a discussion paper on sexual offences. However, it is also the case that, throughout all that period, not one person sought to suggest that the law should be amended.

The Minister did so in 1995.

Nobody sought to suggest that it should be amended in a constitutional context on the basis that such a defence should exist.

When the matter came before the Supreme Court, it decided that this defence should, in fact, be available to an accused person.

That is the Government's job.

It has been bandied about the House and the country over a number of weeks——

By the Minister.

——that the Attorney General and the Minister for Justice, Equality and Law Reform should have been aware of what the Supreme Court decision would be, and that, if they had been so aware, they could have enacted legislation and somehow prevented the release of any prisoner. Let us nail that lie first.

Mr. C was charged.

It is misrepresentation of the most vile kind and must be called what it is.

The Minister was in position at the time when Mr. C was charged.

The situation is quite straightforward.

It is to everyone except the Minister.

No legislation brought forward by the Attorney General——

The Minister should mind himself.

——the Minister for Justice, Equality and Law Reform or anybody in this House——

Except you——

——could correct the position in so far as those who had been convicted under section 1(1) of the 1935 Act were concerned.

We are not prepared to weaken the law.

Nobody is asking for it to be weakened.

Deputy Ó Snodaigh should get the point. We are not prepared to weaken the law.

It is not the case that any Deputy could have credibly come in here and suggested to the Irish people that the law be amended and weakened without being reviled by everybody in society for seeking to put young girls under threat. That is the truth. Let there be no denying that.

That is the truth. There is no point in trying to pretend to the public that it was possible to introduce retrospective legislation.

Make it an election issue.

There is no point in trying to pretend to the public that it was the decision of the Government that the law was unconstitutional, or that it was the decision of the Government to release any prisoner.

Nobody is saying that.

That was not the decision of the Government.

Nobody said that.

Deputy Kenny said it.

Under the Constitution, it is the case that there is a separation of powers. It is the case that the courts interpret the Constitution and it is the case that the courts decide whether a prisoner should be released, in accordance with the same Constitution.

The Minister should tell us who said it.

Deputy Kenny said it.

It is the function of this House and has been the function of this House over many years to seek to correct lacunae in the law where they exist. It was not possible and it could not be possible for any Minister for Justice, Equality and Law Reform or any Attorney General to pre-empt what would be the decision of the Supreme Court.

They could have been ready for the decision.

It is and was the duty of the Attorney General and it is and was the duty of the Minister for Justice, Equality and Law Reform to introduce legislation——

Blame everyone else.

——following the Supreme Court judgment with a view to correcting the position in the interests of society. In so far as that could be done, the legislation before the House today does precisely that.

You are in trouble.

I have heard arguments in the House this morning to the effect that the Minister for Justice, Equality and Law Reform should resign, that he should have acted before the Supreme Court decision and that the Attorney General should have known.

We have heard it all before.

Nobody has had the courage to say the honest to God truth, which is that it did not really matter in the final analysis if they knew it since 1990 because the Supreme Court had not made that decision. What counted was the Supreme Court decision that was made recently and what counted was the corrective action that was taken subsequently.

It was flagged in 2002.

I do not believe that the paucity of the intellectual argument or the intellectual process——

Here we go.

——has been illustrated in a more stark fashion——

This is arrogance.

——than the sight last night——

The Minister thinks he is more intellectually able than everyone else.

——of six or seven Independent Deputies holed up in some Dublin hotel——

The Minister has not learnt anything.

——seeking to gain their tuppence ha'penny worth of publicity about a grave situation and a grave matter facing this House.

The Minister knows about publicity.

If the truth be told, these political gadflies would not get across the interpretation section of the legislation itself, let alone understand what section 1(1) or section 1(2) meant.

Such arrogance.

Is anybody seriously suggesting to this House this afternoon that the Minister for Justice, Equality and Law Reform, Deputy McDowell, one of the leading criminal lawyers in the country——

That is what he thinks, but obviously he is not.

——would understand the law of this country less well than the political gadflies who were on television last night?

The Minister for Justice, Equality and Law Reform——

Why are we in this predicament?

A senior counsel——

Is it the case that anybody could credibly make the argument to this House or any place else——

The Minister should calm down before he has a heart attack.

——that there is even one single member of the Opposition Front Bench in any party who could explain to him or tell him what the law was?

That is not how one makes a point.

I suggest that the people are not going to be fooled by that argument——

The Minister, Deputy O'Donoghue, is even more arrogant than the Minister, Deputy McDowell.

——whatever about any other argument that the Opposition is going to bring forward.

That is arrogance.

It was clear from Deputy Howlin's speech this morning not only that he did not understand the 1935 Act, but also that he did not understand the legislation introduced by the Minister for Justice, Equality and Law Reform in the House today.

It is hard to understand the Minister's dream.

That is the truth, stark and all as it might seem.

That is the arrogance of a Government that is out of touch.

It is the same Deputy Howlin who has been wandering around the country over a long period of time trying to pretend, for example, that he established the Morris tribunal.

How does that relate to the Bill before the House?

He no more set up the Morris tribunal than——

Than the Minister did.

——a fox is appropriate in a henhouse. I want to make this much abundantly clear.

The Minister is making it deafeningly clear.

There is a good reason for section 5. It is the case that if the legislation were entirely gender neutral then a young girl of 16 and a half years having sex with a boy of 18 years and becoming pregnant would be criminalised under the law. The Government did not want to do that. We have spent decades coming out from that hidden corner of Ireland. We have spent decades trying to ensure unmarried young women were not stigmatised in society. If someone is suggesting to me——

What about stigmatising the boys?

——that we should not only turn the clock back beyond 1935——

That is what the Government is doing. It is turning the clock back.

——but criminalise young girls who became pregnant——

It is a good point.

It is turning the clock back.

Order Deputy Cuffe.

That is not the way the Government wants to approach this serious issue.

The Minister is making a farce of this serious issue.

I have studiously avoided commenting on justice issues since taking my current portfolio to allow the current Minister for Justice, Equality and Law Reform get on with his work.

He has been studiously avoiding it.

With good reason.

I will not, however, stand idly by and watch misrepresentation and downright lies seeking to do in a man who has served the people well.

The arrogance.

It is a pity the Minister was moved from justice.

There is no more heinous crime than that of the sex abuser. There is no greater crime than that of the person who takes away the innocence of childhood. Society abhors the child abuser. It is the duty of the Legislature to be tough on those very abusers. There is no excuse or defence for it. For 70 years there was, rightly, no legal defence for it. The result of the Supreme Court decision is that the perpetrator of child sex abuse must be given a defence in law. We are forced, in order to protect children, to introduce this legislation which in protecting them also gives the sex abuser an excuse that he or she has to argue in the court. No Member of the Legislature is in the Chamber by choice.

The new legislation will protect girls and boys. It will also ensure that people with a position of responsibility in looking after children will be penalised even more for abusing that responsibility. This debate is about protecting children in law. The courts have a duty to protect children in their sentencing. Parents, teachers and society in general have a duty to protect children not only in laws but through policies, protection systems and education. Through the vetting of people working with children extra protection can be added. New teachers, school bus drivers, caretakers, special needs assistants, escorts and people working with vulnerable children are now being vetted. With the expanded central vetting unit, children are receiving more protection. School programmes in social, personal and health education involve relationship and sexuality education and personal safety which gives young people the skills to go as far as they can to protect themselves. All primary schools should be offering the Stay Safe programme which is age appropriate, sensitive and a positive protection for young people.

Over the past week the debate has broadened. It has included the lifestyle of young people and the lowering of the age of consent for sexual activity. I have spent my working life with teenage girls. I have worked with the young teenage schoolgirl who is now a mother. I have seen her trauma and the pressures on her. That is why we will not criminalise her in the Bill. I have taught young girls who have been savagely abused by their fathers and people they knew. They are the victims of sex abuse. Through support and their fortitude, they have managed to overcome many of their difficulties to participate in life although they have been scarred for life.

I am on record as being concerned about the lifestyle of some of our young people. Many of them are involved in under age drinking and sex. I appreciate the problems and the pressures on young people by way of money, labels, peer pressure etc. The question was asked whether our laws should reflect reality. I am a strong believer that our laws should create rather than reflect the social norm. It is our duty to legislate for the type of society we want, the values we hold dear as a society and the standards to which we should aspire. Those values, norms and standards include allowing our children to enjoy their childhood and doing everything we can to protect and support them. The Bill is a contribution in this regard.

I wish to share time with Deputies English and McCormack.

I was appalled at the self-satisfied manner in which the Minister for Justice, Equality and Law Reform made his contribution but it reflects his attitude in general. It is time he learned the issue is not all about him, that he is not the most important person in this regard and the world does not revolve around his axis. The public has not worked up a frenzy, as the Minster stated. There was a legitimate outpouring of anger and outrage about this issue and the use of the word "frenzy" is wrong and unfair. The people reacted to the situation in which they found themselves and they are fearful of remaining in this position.

The legislation has serious flaws. The Government should have closed the loophole first before addressing the other issues. The issue of the cross-examination of a child is a red herring. While it is a legitimate point, it could be addressed with relative ease if the Minister implemented the report on his desk. Video recording of evidence and other less invasive methods could be used and it is wrong to create the impression that young people will be in the dock.

The Bill is not gender neutral, as the Taoiseach promised, and it fails his test. Section 5 is seriously problematic for a number of reasons. The first is the distinction between sexual acts and sexual intercourse. The section provides that it is acceptable for women to engage in sexual intercourse but they will be prosecuted for engaging in other sexual acts that do not lead to intercourse. However, young people will engage in other sexual acts before progressing to sexual intercourse. This is unbelievable, as the section provides that sexual acts in which young people first experiment are wrong but it is acceptable to engage in sexual intercourse.

What responsibility have boys aged under 17? The Minister for Education and Science stated she has worked with young girls but she clearly has not worked with young boys. They become fathers in many instances following sexual intercourse. While the Minister of State with responsibility for children's affairs, Deputy Brian Lenihan, stated that the Government should not discriminate, it is doing so under this section and his arguments do not stand up.

I have thought a great deal over the past few days about the issue of the age of consent and I accept it is not easy to address. Everybody is aware of young people's behaviour and their interaction with each other. A minority of young people engage in sexual intercourse. Since I entered the House, we had several heated debates on various issues affecting young people, particularly under age drinking. Over the top responses have been used to clamp down on under age drinking. While I support the clamp down, the consequences of teenage sex are more serious than those of under age drinking. The consequence is often the creation of another life and that issue has not been addressed properly in the legislation, particularly in section 5.

No more than anybody else, I do not seek to criminalise young girls or boys but we have a duty to help parents as they try to set the tone in their households and teach their children morals and responsibility. If a 16 year old can turn around and say the legislation states it is all right for me to do that——

The law states a girl cannot say to her parents that she is not committing an offence by having sex.

That is wrong. We must give parents the back-up to instil their own values and responsibilities in their children. We have a duty to do that.

Does Deputy Enright want to criminalise them for the first time?

Is that Fine Gael policy?

I also ask that the Minister would consider an amendment we intend to put forward in regard to consensual sex between teenagers. If this Bill is taken to its full conclusion and teenagers end up in court and are convicted of an offence, we should consider having it expunged——

The girl commits no offence at the moment.

For both the girl and the boy.

Deputy Enright wants to make it an offence.

My point is a separate one. I am discussing the possibility of girls and boys being criminalised in the event of a conviction. I suggest that the offence would be expunged from the record when they reach the age of majority if the sex was consensual.

The first page of the Bill refers to persons in authority. Perhaps siblings should be added to this category. Obviously an older brother or sister can be a person in authority.

That relates to an incest offence.

Why does the Minister specify other persons such as parents, step-parents and guardians? It is also illegal for those people to do it. If the Minister includes these categories of person, why does he not also include older brothers or sisters? He should take this issue to its logical conclusion and ensure everybody is included and the legislation is watertight. It can be done and the Minister should consider it.

It is a separate offence.

It is a separate offence.

So too is it an offence for a step-parent or guardian. The Taoiseach and the Tánaiste outlined that during the week when a list was provided of all the other sexual offences that exist. This matter should be considered.

During the debate the Minister interjected that there was some communication or consideration from the Director of Public Prosecutions in regard to section 5. He did not go so far as to state it was included on the say so of the DPP. Will he clarify if that was the case?

I am disappointed with the manner in which the House is operating today. Hundreds of parents are gathering outside Leinster House and children around the country are afraid and worried yet we are shouting across each other, nit-picking, calling Members names, referring to their size and going back over history. What is going on in the House is an absolute disgrace. This is a serious issue and I am disappointed with our response to it. Parents and young people are also disappointed. We are meant to be the law makers. We are supposed to be here to address this serious issue.

I do not believe in apportioning blame so I will not point to who should have known about this issue. The system is at fault. When Deputies on both sides of the House first arrive they remark on how badly the system operates and how slowly it works. I certainly have remarked on it and I am sure the Minister and his colleagues did the same when they were new to the House. Nothing has changed in the time I have been in the House. The slow pace of the system is part of the problem.

Another difficulty is the system by which the Law Reform Commission makes available its book of recommendations and reports. It is full of recommendations and nobody highlights what is the most urgent matter to be dealt with. Law reform is part of our work, not merely justice. However, we achieve a great deal of reform. The Oireachtas is very slow, does not sit for enough days each year and does not do enough work. That is why issues like this catch up on us and eventually problems arise such as the problems in recent weeks. That is not the fault of one person, it is the fault of the system.

I am fed up hearing the Ceann Comhairle tell us day in and day out that if we want Dáil reform we should bring it about. Only one section of the House can achieve Dáil reform and that is the Members on the Government side of the House, those who are in power. We may want it but we cannot get it. We will have to have Dáil reform or more cases like this will arise, where the law did not change in time in line with societal change, and nip us in the rear end. I do not blame any one person but from now on let us discuss Dáil reform and getting things done in the House. We must deal more quickly with legislation.

I am not happy with parts of the Bill but I will accept it because it gives protection to young people, which is of the utmost importance. I do not agree with the Minister or the Taoiseach's belief that nothing has changed in the past week and young people are still safe from sexual predators. They do not feel as safe as they did two weeks ago. Criminals think they will get away with their crimes. There is a need for legislation. The Bill closes the loophole, introduces more safeguards and sets a bar for the age of consent that may not reflect what is happening in society but I accept we should try to encourage young people. I do not say I agree with it, that is a debate we may have in the future, but the Bill is before us and we should accept it and close the loophole that currently exists in this area. We can have a proper discussion later. In light of all the advice received by the Minister, Taoiseach, Cabinet and Attorney General in respect of this Bill, was every avenue examined? Are we doing all we can to make our children as safe as possible? Are there any constitutional avenues we can take? Are there any referenda we can hold to afford more protection to young people? It is merely a question. I would be interested in hearing opinions on this issue.

I accept that this Bill will not affect the cases of Messrs. A, B, C, D, E, F and G and any other cases which might be appealed. The Minister is correct in saying that the country must also accept this. It is tough but we must accept it. Are there any laws we can introduce next week or the following week which would deal with these offenders? Mr. A has been released and others may be released. These people have admitted their guilt and they are a danger to society and young people. Surely, we can do something to protect our children from these people when they are released. It might involve changing a law or introducing a new law but there must be some way of monitoring these people and protecting our young people. This issue must be examined and I would be interested in hearing the Minister's views in this regard.

I am very disappointed with section 5 of the Bill. It is right that young mothers would not be victimised or criminalised and that it would be automatically assumed that they were victims of sexual offences. However, if this Bill is passed in its current form, a 16 year old man who has sex with and impregnates a young woman could be in prison when his child is born. I may be mistaken but this is my understanding of it because he could receive a sentence of up to 12 months in prison. The young woman is not guilty of any offence but the father is and could be in prison by the time his child is born. This is a very strange situation which must be examined. It is probably best to amend section 5 or remove it from the Bill and, with the help of all parties, simply close the loophole today because the situation is very serious. If a 13 year old boy has sexual relations with a 16 year old girl, he is guilty of an offence but she is not. Something is amiss in this regard but today is not the day to deal with it fully.

People are confused, concerned about and angered by the events of the past two weeks. They have every right to be angry. They ask how a man over 40 can walk free without serving his sentence for the statutory rape of a 12 year old girl. People are angry with the Government and, whether they elect to accept this or not, they are angry with the Minister. People realise that, if the Government had acted on foot of the recommendations of the report by the Law Reform Commission, this situation would not have arisen. The widespread anger, horror and hurt caused by this affair should not be underestimated by the Government or anyone else. We do not know if six or seven more convicted sex offenders will walk free or what the situation is regarding those individuals awaiting trial.

It is ironic and frightening that this affair arose at a time when the Government was considering introducing a common age of consent of 16 for all sexually active people and permitting sexual activity between consenting teenagers aged within two years of each other. This would have effectively lowered the age of consent to 14. I am glad the Government backed down on this proposal. What is the Dáil's role within society? What is our role as legislators? We should set standards in the laws we enact here. Children and teenagers should be protected from sexual predators and I believe the greater the age gap, the greater the likelihood of exploitation.

Due to the age in which we live and the glamorisation of sex, the impression is given that consensual sex between teenagers is acceptable if the age gap is not too great. However, I do not accept this, as it is a dangerous mindset. Deputies must send the message that sex between teenagers is not acceptable as normal practice. Legislators, parents, the media, people in public roles of authority and the general public must be awakened to the fact it is not acceptable to see sexual intercourse between youngsters as normal behaviour.

In his contribution this morning, Fine Gael's leader, Deputy Kenny, pointed out the negative aspects of premature sexual activity and the alarming increase in sexually transmitted diseases. The Bill does not refer to the serious impact of alcohol abuse on sexual activity. We are living in a dangerous age and, even in this legislation, we must be careful not to appear to give teenagers the green light to view each other as sexual objects.

For example, it is illegal for people to smoke in nightclubs and discos. This measure has become socially acceptable despite the view held by many that it would not be, particularly in respect of teenagers. However, there is evidence from the media and elsewhere that sexual activity in nightclubs, discos and other public places has become accepted. Why is it illegal to smoke but not illegal to engage in sexual activity, which might have far more dangerous consequences than a puff of a cigarette?

From what my four children, who went through the disco scene, have told me, I have been awakened to the reality of the activities taking place nightly in discos throughout the country. If someone lit a cigarette, it would not be long before a bouncer reminded the person that smoking was illegal and the establishment would be fined as a result. However, a blind eye is turned to a lot of sexual activity in the same locations.

Opposition Members did not receive copies of the Minister's prepared script and we did not know when he deviated from it, but I take it he was doing so at those times when he spoke emotionally. For most of the time, he defended his role in this matter. However, it would have been better for him to take the lead and tell the House he was sorry for the mess and, in co-operation with other parties, that the Government would try to address the issue. He should have apologised for a situation in which convicted criminals have walked free, more are likely to do so and some convictions might be quashed. Instead of ranting and trying to blame everyone else, he should have taken a degree of responsibility. Likewise, his predecessor, the current Minister for Arts, Sport and Tourism, Deputy O'Donoghue, who has since left the Chamber, does not want to take any blame. Instead, he wants to blame the Opposition and everyone else.

Legislation is a matter for members of the Government and, in this case, the Minister for Justice, Equality and Law Reform in the first instance. It is hard to accept the Minister was not alerted to the danger of such issues because there is evidence of several instances in which he was alerted, namely, the Law Reform Commission report and another report two years ago.

While I might have the opportunity to comment on the Fine Gael amendment to section 5 to be tabled on Committee Stage, I will also highlight that other siblings are not mentioned in section 1. There have been many cases of sexual activity between and rape by siblings. It is surprising that while uncles, aunts, foster parents and parents were mentioned, siblings were not. This oversight should be corrected.

I want to dispel the myth that has arisen since the Supreme Court decision was handed down that the Government knew something and, if it did not know, it should have known, and if it knew what it should have known, it could have done something about it. That is a sham and Deputies on all sides of the House are cognisant of that.

What could the Government have known? What should it have anticipated? Was it that section 1(1) of the Criminal Law (Amendment) Act 1935 was unconstitutional? This legislation was reviewed several times a year by the Judiciary. Dozens of people were sent to prison for long terms by the Judiciary based on the provisions of section 1(1) of the Criminal Law Amendment Act 1935. None of those judges so much as hinted that there was a taint of unconstitutionality attaching to that section. How, then, was the Government to anticipate this?

We are told that we were warned by the Law Reform Commission in 1990. That is a falsehood. The 1990 Law Reform Commission report stated that the section was harsh. The law was rough on paedophiles and predators. There was never a hint that it was in any way unconstitutional.

In desperation, when we disposed of those arguments, we were told someone wrote an article in the Law Society Gazette. Academics write articles in gazettes and journals all the time. I did it myself when I was in the academic world and every time I cast doubts on legislation, I did not expect the Government of the day to galvanise itself to decide what to do with a possible difficulty with some obscure section of legislation.

When that argument foundered, the attack switched. Now, we are told the Attorney General and Minister for Justice, Equality and Law Reform should have known something, presumably that the appeal had been lodged. They certainly knew about the case when it was challenged in the High Court, and it decided the law was perfectly constitutional. Subsequently, an appeal was lodged. I concede that, as a matter of courtesy, someone in the Attorney General's office might have mentioned to him that the appeal was in train. Someone might have mentioned it to the Minister for Justice, Equality and Law Reform as a matter of courtesy but there was no other reason to mention it to him because nothing had changed. The case was fought assiduously by the State up to High Court level and it won.

On appeal, the same procedure applied and the State's lawyers were striving to ensure the State would also succeed at Supreme Court level. If the State's lawyers had seen something that indicated to them that the appeal should no longer be defended, that should have been brought to the attention of the Minister for Justice, Equality and Law Reform and the Attorney General because it would be a matter of grave import. Courtesy aside, there was no reason to mention the fact to the Minister or the Attorney General short of that.

The follow-on argument is that, if the Minister or Attorney General had known, they could have done something about it. A greater authority than me in this area is Michael O'Higgins, senior counsel, one of the leading lights of the Bar and who has no connection with either party in this Government. He was asked on RTE on Wednesday afternoon, if the Minister or Attorney General had known, could they have done something about it, and he replied, "No". Pauline Walley, who has prosecuted several rape cases, gave the same answer to the same question on "Prime Time". Legal experts agree that the Attorney General and the Minister could have done nothing about it. I fail to see the grave difficulty with the Minister for Justice, Equality and Law Reform or the Attorney General not knowing about this when every legal expert freely admits that, even if they had known, they could have done nothing about it.

The suggestion was repeated this morning that perhaps they should have done something about it and that we should have been prepared. This is an extraordinary proposition if one considers it closely. When legislation is challenged and the State defends it up to and including Supreme Court level, there are two possible outcomes — the State will win or lose. If the State wins and the constitutionality of the legislation is upheld, there is no need to do anything.

The proposition now being advanced is that we should always assume the State is going to lose, deploying our resources to prepare legislation in the event of such a loss. It should be borne in mind that a Supreme Court decision can go in many different directions and have many variations. It can require the Government of the day, as a result of the decision, to carry out various actions or deal with the legislation in an infinite variety of ways.

Is it being seriously suggested we have a type of system where we are supposed to anticipate all possible outcomes of every Supreme Court challenge to legislation, and have many pieces of legislation ready in the event of the outcome going against the State, which will always be assumed? If the Supreme Court hands down the adverse verdict, are we supposed to push a button on a machine and an appropriate piece of legislation will pop up like a piece of toast, ready to be put into action immediately?

That is an extraordinary proposition. There are dozens of cases before the courts where the Constitution is an issue. If a court decided a matter was unconstitutional, many of them would have the gravest possible implications. Is the Minister for Justice, Equality and Law Reform and the Attorney General supposed to deploy an army of staff to look at these cases, try to anticipate the various outcomes and provide for them in advance? This is only to be stated for people to realise how absurd it is.

It is absurd.

We would need ten Ministers for Justice, Equality and Law Reform, ten Attorneys General and approximately ten times the staff. That staff would need to be doing nothing else from dawn to dusk. It is extraordinary nonsense.

I do not think so.

Every week, one or two of the items coming before the Cabinet is a memorandum of a case being put before the European court by an interest which might have an impact on the Irish economy, jobs or human rights. The Cabinet must decide whether to join the case. Many times we decide to join the case but we do not get the Civil Service to assume the case will go against us.

This is different, it is about the safety of children.

It is the same. The way every Government in the history of the State has dealt with a constitutional challenge is to fight it up to and including the Supreme Court. When the Supreme Court makes its decision, that is dealt with.

The Minister should appreciate that this is about the safety of children. It is not about property.

Deputy Burton should allow the Minister to continue without interruption.

My Government has dealt with it that way and the Deputy's Government would have done the same. It was dealt with under the 1922 and 1937 Constitutions.

There has been a suggestion that the Minister for Justice, Equality and Law Reform should resign as a result of this. The greatest example of hypocrisy I have seen in 25 years in this House occurred on the Opposition side on Wednesday. Deputy Howlin's present leader, Deputy Rabbitte, proceeded to compare the current Minister for Justice, Equality and Law Reform, Deputy McDowell, with a former Minister for Justice, Ms Nora Owen. Deputy Rabbitte suggested we were hypocrites because we were protecting Deputy McDowell but had called on Nora Owen to resign because a letter of small significance had gone into her office and had not been read.

It was as if the letter was a fundraiser for the local GAA club, or perhaps another missive from Mr. Coughlan, recently retired from Trinity College, about the evils of Europe. The letter was information to the effect that the Special Criminal Court, specially set up to deal with terrorists, was not properly constituted. That matter lay on then Minister Owen's desk for weeks while several of the most dangerous people who ever walked on the face of this country were being tried.

I thought we were speaking about child safety.

As a result, these people walked free. We are being asked to accept by Deputy Rabbitte——

Were those people more dangerous than Mr. A?

They are no more or less morally culpable——

Mr. A is——

The Deputy should allow the Minister to conclude.

Deputy Rabbitte expects us to accept the proposition that it was okay for the then Minister for Justice to continue in office when she had received correspondence to the effect that the criminal court designed to try terrorists in this country was improperly constituted for several weeks. He asks us to accept that this was all right and that she was not expected to know that little matter. He expects the current Minister for Justice, Equality and Law Reform, Deputy McDowell, to resign because he did not personally know something which he could have done nothing about anyway.

The Minister should conclude.

There is a campaign in this country which is now becoming more blatant. The Opposition is arguing that the people deserve better standards of honesty and integrity. If the people of this country are waiting for standards of honesty and integrity——

Will they get them from the Minister's party?

——from people who will falsify, distort and misrepresent the facts in this way, they will be waiting for a long time.

Hear, hear.

It has been a gruelling week for the country, for parents, for legislators and for the victims of child sexual offences. Decisions of the superior courts have catapulted all of us into a constitutional, legal and moral crisis which it falls to this Chamber to address as a matter of urgency.

Such urgency is not the best way to grapple with such grave matters as human deviance on the one hand and child vulnerability and protection on the other. We are required to balance competing constitutional imperatives in circumstances of acute public anguish, arising from the court's removal of a child protection measure in law which has served society well over approximately 70 years and which put the presumption of innocence of children over the presumption of innocence of the accused.

Section 1(1) of the 1935 Act denied a defence of reasonable mistake as to age to an accused who had carnal knowledge of a child. Hundreds of men have been convicted under the section, many of whom pleaded guilty to the crime and were jailed on foot of those convictions and admissions. This has now been found to be unconstitutional.

The State, on behalf of the people, will argue today in an appeal on the Laffoy judgment that although section 1(1) as an offence has been struck down as inconsistent with the Constitution, things done under it are not retrospectively made unlawful. We will argue on behalf of the people that, while a provision stands part of our law, is accepted by all, goes unchallenged for over 70 years and provides a protection for children against rape, it should, in justice, attract the protection of the courts at least to the extent that convictions obtained under it are not rendered meaningless in law, which is the appalling vista which presents itself.

Crucial to the State's argument in defending the lawfulness of the detention of those in custody having been convicted under the now unconstitutional section of the Act is that judicial review and not habeas corpus be the way any challenge to custody should be dealt with. Judicial review would allow other relevant issues to be considered by the court, such as the compelling fact that a person seeking release pleaded guilty to the crime or avoided other serious charges by trading a plea under section 1(1). Today the Supreme Court must grapple with the real life implications of its earlier decision to strike down section 1(1) of the 1935 Act. This is not a hypothetical legal conundrum.

Men who pleaded guilty to defiling children face certain release and retrospective acquittal. That has the country in a state of torment and disbelief and flies in the face of justice and morality as we understand them as human beings. The Supreme Court must listen to the arguments made by the State team on behalf of the people. It must consider the real-life implication of rendering the section unconstitutional — that men who defiled children will be released into the community. As the Supreme Court grapples with that decision, all we in this House can do is grapple with how to handle offences involving carnal knowledge of children in the future. There are compelling reasons for the court not to authorise the release of such people. It should weigh the risk to the public of any such release, the gravity of the offences committed, the number of victims concerned and the impact of such release on the community.

All law cases are essentially about balancing rights, and a fundamental tenet of our law is the presumption of innocence within the right to a fair trial. That tenet has served us well but has also made prosecutions for child abuse very difficult for victims and has been used successfully by generations of child abusers to avoid prosecution by claiming lapse of time. That should also be studied by the Legislature.

There are legitimate concerns and this is not the best way to legislate on serious issues for society. I hope it will just be the start of a framework of protection for children.

I realise the time available to debate the Bill is relatively short. Every speaker has alluded to the fact that the country is convulsed by the controversy arising from the surprising decision of the Supreme Court in this case. The reasons for public disquiet include the prospect that sentenced sexual predators who have in many cases pleaded guilty to offences could conceivably be released to return to the immediate area in which the offences were committed and where the victims and their families live. The wider, longer-term picture is the need to address the changed circumstances and the possibility that sexual predators will take refuge in the plea of honest belief or reasonable mistake. It is as a consequence of this appalling vista that the Minister for Justice, Equality and Law Reform requires our presence today to deal with legislation to rectify the problem.

There is no doubt the Bill will have clear implications for the victims of crime who will be required to attend court to be subjected to severe and difficult cross-examination. This is the position in which we find ourselves. While the public administration here operates on the basis that the Judiciary, Executive and Legislature function separately from one another, the legislation before us demonstrates that significant political problems can arise when the Judiciary takes decisions that have clear and profound implications for those charged with keeping legislation up to date.

The emotional impact of the issues under debate have caused people to protest outside the House and acted as a driver for emergency legislation. In many cases, witnesses to the offences covered by the legislation are scarce because these types of crimes are committed in secret and beyond the view of members of the public. This exacerbates the problems experienced by the victims because if witnesses were available, the trauma of having to appear in court would be reduced.

I am pleased to have an opportunity to speak on this important Bill. All Members will wish to act together in a responsible fashion to amend the law on statutory rape. As the legal background to the issue is well known at this stage, I do not propose to repeat it. I concur with the reasoning set out by the Minister this morning and his cautionary comments on the difficulties that will arise in these kinds of cases, particularly for victims. In this respect, I am a little concerned by the inclusion in the Bill of a qualification that "all other relevant circumstances" may be taken into account by a court. I will return to this issue on Committee Stage. It is imperative that the House enacts new legislation quickly to protect young people and vulnerable children.

On a more general note, I find it depressing that the Opposition parties have acted in such an irresponsible manner in recent days. The Supreme Court judgment declaring section 1(1) of the 1935 Act unconstitutional was a matter of concern to all of us. I am delighted that in such a short period the Government has produced a Bill to remedy the matter. The Opposition has mischievously and with some success endeavoured to spread the falsehood that the Government should have known about this case and, even more ridiculously, should have prepared a Bill in anticipation of the Supreme Court decision. This is a nonsensical position and will be regarded as such, not only by legal practitioners but by any person of good, sound sense, a category which appears to exclude members of the Opposition.

Obviously the Deputy was not here in 1996.

As this debate takes place, the Supreme Court is deciding whether a person convicted under the section found to be unconstitutional should be released. We await its judgment and should, of course, let it deliberate without any influence or interference. In so far as some Members of this House may have made comments, in a sense, leaning on that judge, I wish to dissociate myself from those types of comments. The courts must act completely independently and must uphold the law as they see it. We can obviously speak for ourselves but we must never interfere in any way with their deliberations.

I commend the Minister for acting promptly in this regard. I look forward to a constructive debate on Committee Stage and commend the Bill to the House.

I wish to share time with Deputies Neville, Stanton and Crawford.

Is that agreed? Agreed.

It would be nice if we could act in a level-headed manner but, to be honest, only headless chickens would act more erratically than some Ministers here today. The Minister for Justice, Equality and Law Reform has accused the Irish people of drumming up a frenzy about his incompetence. The reason there is such a frenzy is the way the people felt they were being treated with regard to this issue. The Minister was prepared to go on holidays for a week before the issue was raised and he failed to anticipate its importance. That is why we are here now.

On the day after the Supreme Court judgment, the Ombudsman for Children wrote to the Minister, fulfilling her own statutory mandate, because she expected there would be urgent legislation on this issue. The Tánaiste tried to use that letter to imply somehow that the Ombudsman for Children supported her in delaying the matter and in going on holidays for another week. Of course, the Ombudsman for Children totally denied that this morning.

Section 5 of this legislation will turn out to be the most contentious but even Ministers are unclear on what it is supposed to mean. The Minister, Deputy O'Donoghue, talked about a 16 year old girl having sex with somebody who is over 18. In his bluster, he said he did not want to see that 16 and a half year old girl criminalised. It is just as well that he should stay away from justice issues since losing that portfolio. It is not the 16 and a half year old girl that will be criminalised, it is the person over 18, whether that person is male or female, who will be criminalised.

That is not so.

Mixed views appear to be coming from Ministers. Where are the origins of section 5? Was it given to the Minister by the DPP or by the Cabinet? It would be nice to have a straightforward answer to that. Sadly, we do not have much time to discuss the Bill as our time has been cut dramatically. If Ministers stopped acting like minor television stars and acted as CEOs of their Departments we would have fewer problems like this.

The Progressive Democrats have the distinction of being the only Ministers who have been brought to account by the Supreme Court. The Minister has been brought to account with regard to the way he does not protect children in our society.

This time last year, it was the Minister for Health and Children who was brought to account by the Supreme Court for the way in which she treated the elderly in our society.


If Ministers took their role as legislators a little more seriously, we would not have had to deal with issues coming from the Supreme Court because they failed to act.

The Deputy wants to weaken the law.

Ministers were going to go on holidays and ignore this issue but for the fact that they were brought to account by the people and the Opposition. Instead of the bluster the Minister has gone on with all morning, he should have been honest about it.

The people elected the Deputy as an Independent and he abandoned them.

I was elected to represent the people of Wexford.

I regret that our time is limited. The political debate is rightly taking place but I want to talk about the victims and the effect of abuse on children. A child who is the victim of abuse usually develops low self-esteem, a feeling of worthlessness and an abnormal and distorted view of sex. The child may become withdrawn and mistrustful of adults and can become suicidal. Some children who have been sexually abused have difficulty in relating to others except on sexual terms. Some sexually abused children become child abusers or prostitutes and have serious problems when they become adults.

I emphasise the effect of sexual abuse on victims. Sexually abused children may develop unusual interest in or avoidance of all matters of a sexual nature. They often have sleep problems and extensive nightmares, and can become depressed or withdraw from friends or family. In one US study, the lifetime depression among children who were rape survivors was 52% compared to 27% among non-victims, which suggests victims of child sexual abuse suffer twice the level of depression. They often state that their bodies are dirty or damaged, or fear that there is something wrong with them in the genital area. They often refuse to go to school and have delinquency and conduct problems. They often become secretive and there is a high level of eating disorders among children who have been abused as they move towards adulthood. They express aspects of sexual molestation in drawings, games and fantasies, and are often unusually aggressive and exhibit suicidal behaviour. I emphasise the effect of sexual abuse on the victims. Other areas have rightly been discussed.

The Irish Independent recently reported on a case where an uncle-in-law abused his niece. The Minister should as an amendment include uncles-in-law and aunts-in-law in the list of persons in authority because it is a close relationship. I am also concerned about section 5 for the reasons outlined by other speakers.

I refer the House to a meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights held on 23 May last. It may be of particular interest to the Minister, Deputy O'Donoghue, as it concerns the lack of rape crisis facilities in County Kerry. The committee record makes harrowing reading. The committee heard from the representatives of 13 NGOs. They outlined the lack of a sexual assault treatment unit and the lack of forensic medical examinations for victims of rape, not just in County Kerry but throughout the country.

The witnesses stated that under-reporting cuts across many jurisdictions but that Ireland experiences the highest number of cases falling out of the system before coming to the courts. In spite of a sustained increase in the number of reported cases of sexual violence, we have a lower conviction rate — the witnesses suggested we convict only 5%. They maintained the criminal justice system has found it notoriously difficult to deliver justice for victims of sexual violence, which is an important area. The witnesses maintained that the low conviction rate will discourage women to report and that the legal process is very slow, making an already traumatic experience even more so. The lack of services discourages women from reporting sexual violence.

The Rape Crisis Network of Ireland has produced a position paper on this issue, with which the Minister might familiarise himself. It calls for specialist training and education for all agencies in the criminal justice system and an ending, in particular, of the current "no reasons for decisions" policy of the Director of Public Prosecutions, and its replacement with a mechanism that is accountable.

The witnesses referred to a pilot scheme initiated in April 2002. It operated very successfully in spite of the fact that no resources had been allocated. A total of 60 clients were seen and supported but in spite of ten GPs expressing an interest, there was no back-up from the Department. I ask the Minister to brief himself on these important issues.

Having listened to the Government, and Government backbenchers in particular, I believe the Dáil report for 1996 and 1997, a period in opposition of the Minister's party, should be compulsory reading because people do not know how low opposition can go.

This is a crisis. I have been given three minutes to speak, the same time as the Taoiseach had to speak on his visit to the United States. It is difficult to understand why he did not see fit to be present in the House to deal with this issue, although he claimed it did not need to be dealt with.

I would like to refer quickly to the manner in which young people are treated in court, which is an issue with which the Minister should deal. I listened to a father last night whose daughter was one of the 2% of victims of crimes of this nature who have their day in court. She was treated as the criminal rather than as the victim. She did not get any help from the legal system — she was there as a bystander and she was used as cannon fodder when she was asked to go into court. The Garda was extremely good to her. I ask the Minister to do what he can at this last minute to bring some degree of clarity to this legislation. It is vital that victims of whatever age should be able to avail of video links, support from social workers and support from the legal system. If we do not provide for such services, people will not come forward to say they have been the victims of sexual crimes. I do not think any caring Minister would ask anyone to endure what the girl whose father I mentioned had to endure. I personally witnessed its effect on her family.

I thank the Members of the House who contributed to this debate and made some very useful points. I would like to say, a preliminary remark, that I have noted on two occasions that some Deputies in this House think it is okay to shout me down, to interrupt my speech and to spend minutes barracking me and shouting and roaring at me. I refer to the debate on the Bill introducing the citizenship referendum and today's debate. I do not refer to any of the Deputies who are currently in the House. However, other Deputies were bellowing, roaring and shouting this morning to try to stop me from speaking in this democratic Assembly. It is not right, it is not proper and it is unfair. I am entitled to explain the background to a Bill and the content of it. I had to abandon most of the things I proposed to say today because I was being continuously heckled by people who were shouting and roaring at me while I was speaking.

It was disgraceful.

It is not acceptable that that should happen in a democratic Assembly. I contrast my treatment in this House with the treatment of Deputy Kenny, who was allowed to make a reflective speech without interruption from this side of the House. He was able to make his speech in circumstances of dignity, even though some of us on this side disagreed radically with some of the things he was saying. I appeal to the Deputies who were shouting and roaring earlier but have now fled to consider that a Minister of whatever party in this Assembly is entitled to get a fair hearing and to deliver his speech in fair and reasonable circumstances, without having to raise his voice to be heard over a cacophony of noise.

I apologise to the House for the fact that copies of my script were not ready to be submitted to Members this morning. They were not ready because I had to deal this morning with a problem in the Bill that I discovered overnight. That delay robbed me of a vital 20 or 30 minutes when I was preparing my script which would have enabled me to have the script in tickety boo order for circulation among Deputies. I am sorry that such problems were experienced, but I had to concentrate on looking after the interests of kids, which was more important. As I have said, I discovered overnight that the provisions relating to cross-examination, which protect rape victims from having their sexual histories gratuitously thrown in their faces to do them damage in court, were absent from this legislation. One of the amendments which has been tabled today relates to that matter. I apologise if the attention I deflected so I could remedy that problem caused some Members of the House to have to listen to what I was saying instead of reading it, if they were going to do either, which most of them were not.

That is a cheap shot.

I would like to consider a point that was made by Deputy Howlin. I am sorry if I was short with him in the course of his speech. Having been told that I was nothing short of a disgrace and having been barracked for a long time——

Not by me.

I accept that. Nobody who is in the House at present behaved in such a manner, although I note that Deputy Stagg has sneaked into the House — I will allow him to stay under the radar this time. Deputy Howlin suggested that I am wrong on the issue of a 15 year old boy who engages in consensual acts which amount to gross indecency with an adult, but we have been checking the issue. As far as I am aware, I am right on that.

Two senior counsels have argued differently.

I have checked it through the Attorney General's office. I cannot find any statutory provision that states a 15 and a half year old boy cannot consent. Deputy Howlin may be able to find it and if he draws my attention to it I will concede he is right.

It is contained in section 14 of the Criminal Law (Amendment) Act 1935.

That is for a child under the age of 15 years. Regarding gross indecency for children over 15 years of age, will the Deputy draw my attention to any statutory provision which states consent is not a defence?

If I may——

There is no point in debating this now. I will concede to the Deputy if he can find any statutory basis that states a 15 and a half year old boy is precluded from consenting to an act of gross indecency.

If he consents, it is not a crime. That is the issue.

Yes, it never has been according to the advice I am getting.

It was under the 1993 Act which is being repealed.

No it was not. Consent——

One could not consent under 17 years under the 1993 Act.

We must wrap up the statements.

We will not solve this problem now. There is a difference of opinion on this issue.

That is a problem.

I accept it is a problem. We do not agree on the law.

It is a problem that we do not agree.

That brings me to another issue.

We are making laws.

This legislation is being brought through in rapid order. Ten days ago when I said I would like two weeks to get the legislation through I was told no, it must be done now. I was told I was living on another planet and did not understand the gravity of the situation.

Hear, hear. That is true.

I was told that at great length but the fact is that this legislation is important. Even if it was a temporary provision, it would be an important Act.

The Minister could have engaged with the Opposition last week.

I have done my best to listen to all the views of all the justice spokespersons. I have not been able to accept them all but I met them on several occasions to try to get an understanding of where the consensus of opinion lies on this issue in this House, it not being matter on which any of us sought an electoral mandate which divides us.

There is a clear division of views in the House. Some Members have suggested there should be no change to the law. The old law should have been reinstated and left as it was. That would mean that for a girl aged 16 years to have sexual intercourse with a boy, the boy committed an offence but the girl did not. Those Members arguing about section 5 must realise if the old law was reinstated——

Pro tem.

——in those circumstances it would be an offence for a boy to have sexual intercourse with a girl at the age of 16 and a half years but not for the girl. Questions have been put——

Section 2 allows them if they are married.

Deputy Burton is consistently out of order.

The Deputy should listen to the Minister.

Why is Deputy Burton shouting me down yet again?

I am not shouting the Minister down.

The way Deputy Burton behaves in the House she is consistently out of order.

Deputy Burton is out of order. The Minister without interruption.

Questions have been asked about section 5. The Director of Public Prosecutions and the Attorney General conferred on the Bill. The gist of the DPP's strong view was that it was all very well from the point of view of political correctness to have gender neutrality, but that if we did not make special provision for young females it would result in substantial ongoing injustice in that young female victims would feel they would be viewed as criminals and treated as an accomplice in criminal justice proceedings. Deputies Rabbitte, Kenny and others stated this amendment resulted from a Fianna Fáil committee meeting. That is wholly and completely untrue. This issue was thrashed out at great length. Deputy Joe Higgins first asked whether we would criminalise unmarried mothers for the first time in Irish history. Section 5 is in place to avoid that. If it were not for this section, young women who become pregnant could find themselves criminalised for having a child. It is not pretty to avoid that in legislation but if I introduced a totally gender neutral Bill, I would have ensured for the first time that a girl aged 15 or 16 who becomes pregnant would be a criminal as well as everything else.

The Minister can do this another way.

I will not take responsibility for criminalising for the first time in the history of the State a young girl for being a mother.

The Minister should not criminalise teenage boys either.

If I had taken the advice of two political parties, which was to reinstate the law as it was, the boy would commit an offence and the girl would not.

That is unfair. We gave the Minister a copy of an amendment yesterday.

Interruptions are not in order.

I do not know what amendments are being produced. As far as the Government is concerned, we have inserted a counter-balancing measure, which provides that the DPP must consent to a prosecution of a boy of that age. The DPP, considering the preamble to the Constitution about justice and charity, will not, in those circumstances and using his common law discretion, prosecute the boy where he would not prosecute the girl. That is as good as I can do.

Will the Minister yield for a question? The Minister stated earlier that the DPP told him to include section 5.

I did not say that.

Who initiated section 5?

The Cabinet.

The Attorney General consulted the DPP, who warned against having a strictly gender neutral approach to this and warned of the consequences——

That is not my question. Who initiated the section?

I formulated section 5 at a meeting of Government. The notion that Fianna Fáil members went into a room and came back with the section is a falsehood. The Deputy can believe it all he likes but it did not happen.

It has been suggested that instead of decriminalising all teenage sex, lesser penalties should be provided. A District Court fine of, say, €1,000 has been mentioned.

That is nonsense.

The Deputy may think it is nonsense but I have heard this suggested.

Who suggested that?

Does the Deputy want to know? I will not comment further. I am being honourable and truthful and I am sticking to my undertakings. If the Deputies asked their party colleagues, they would shut them up rapidly.

Can we take 16 year old children out of the equation?

It has been suggested that we should have some very light penalty, in the form of a fine only, for teenagers who engage in consensual sex. I will not go down that road for two reasons. First, it would stigmatise unmarried mothers for the first time and, second, even though it would be gender neutral, it would be ineffectual because to fine teenagers €500 , €1,000 or whatever else for consensual sex——

The Minister is providing for a fine of €5,000 in section 4.

Will the Deputy please stop interrupting?

Deputy Jim O'Keeffe should let me finish. Where are working class children to find the money to pay fines if we have a special provision to fine teenagers for having consensual sex, and what will happen to them if they do not come up with the money?

The Minister is trailing a red herring.

Rubbish. That is a red herring.

Give it a rest.

The Deputies should hold on. They do not have to shout all the time.

The Minister is trailing a red herring.

The Minister should just decriminalise 16 year olds. Why does he not do that?

Deputy Joe Higgins evidently believes this proposal was not made. It was made to me.

I do not agree with this. I agree with the Minister. It is ridiculous.

I am trying to achieve a consensus in this House among all the political parties.

The Minister should decriminalise 16-year olds.

I am trying to produce a Bill that will get maximum support. I have to placate Deputy McCormack on the one hand and Deputy Joe Higgins on the other. I am trying to drive a middle road to accommodate the consensus opinion in this House.

I want to finish on this point. It is reasonable to try to achieve consensus. I have done it. It is reasonable to try to achieve as good a Bill as I can in very short order. I would much prefer to have had another fortnight.

One Deputy stated we were proposing to go on holiday next week. I was proposing to spend next week attending the Select Committee on Justice, Equality, Defence and Women's Rights dealing with the Criminal Justice Bill. That is what I wanted to do next week when the House was not sitting. It is not a question of me being lazy. I wanted time, if I could have it, to come up with as good a Bill as I possibly could. I think I have done as good a job as I possibly can.

I have been as reasonable as any Minister, confronted with a demand that he should legislate within hours rather than days, could be in all of these circumstances.

The Minister has had two and a half weeks.

I have tried to bring this House with me on the matter and I deeply regret that yet again on an important speech on a Second Stage debate, the Minister for Justice, Equality and Law Reform has been continually heckled, harassed and shouted down on a number of occasions.


The Minister started it in his Second Stage speech.

Question put and agreed to.