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Dáil Éireann debate -
Tuesday, 6 Mar 2007

Vol. 633 No. 1

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Committee and Remaining Stages.

Question proposed: "That section 1 stand part of the Bill."

I will make a general point and will not repeat it. This is not the proper way to hold a debate on Committee Stage. A Bill of this kind should be parsed, analysed and perused in detail to ensure what ends up on the Statute Book is cast-iron. This process creates the possibility that a defect will occur in the Bill. I agree in principle with what is contained in the Bill so we should do the best we can in the time allowed by the Government.

Section 1 refers to a number of the main Acts, namely, the Criminal Law (Rape) Act 1981, the Criminal Law (Rape) (Amendment) Act 1990, the Criminal Law (Sexual Offences) Act 1993 and the Criminal Law (Sexual Offences) Act 2006. One of the main Acts we are amending relates to grooming, which involves amending the Child Trafficking and Pornography Act 1998, but that is not included in the list of Acts in section 1, which begs the question as to why. Is it an indication that portions of the Bill dealing with grooming were a late addition? Would it not be a tidier arrangement to refer to the Child Trafficking and Pornography Act 1998, which we are now amending following the Fine Gael proposals on grooming? I accept that Act is specifically mentioned in section 6 but it is not a tidy way of doing business.

I support the general principle that this is a difficult way to make law. When the Labour Party pointed out the loophole last week the Minister acknowledged fairly speedily that it needed to be addressed and we want to facilitate it. The Minister has chosen yet again to go further than simply plugging a loophole. I do not wish to sound smart but lifting a portion of the Fine Gael Bill and grafting it onto this, while the right thing to do given we want to enact the legislation, has a smart alec quality. If the Minister wanted to do that he should have addressed other issues. The Minister is plugging a loophole with emergency legislation which the Opposition has had very little time to scrutinise, as we only received it today. I have, to the best of my ability and with the benefit of little advice, tried to examine the Bill forensically and in its historical context to come up with amendments worthy of teasing out the issues in the House. I will be interested to hear the Minister's answer.

This is neither emergency legislation to plug a gap nor a comprehensive response to real deficiencies in our child protection law. It is a hybrid of both, in plugging the gap but also going somewhat further. The Minister cannot have it both ways. Either it represents an emergency measure on which we are all agreed to plug an acknowledged gap in legislation, or it seeks to achieve other objectives. In the latter scenario we on this side of the House, with much less legal support than the Government, need more time to consider the proposed measures to ensure we do our constitutional job to address genuine fears and concerns.

There is an all-party consensus on the issue, which is reflected among members of the all-party Joint Committee on Child Protection, whose Chairman, Deputy Peter Power, has now left the House. Many people have worked very hard on that committee, not least the Chairman. One of its recommendations was a consolidation of the law in this area so we are not constantly plugging gaps and inadequacies in the law. I have no doubt we will return to the issue as technology advances, because legislators everywhere are one step behind the potential of evil people to do harm using technology. We try to keep up to provide general protection.

I will make a final comment on the sexualising of children, about which we all have concerns. Television, radio and newspapers participate in almost vulgarising public life and discourse in this regard. We cannot turn the tide in that respect but the issue needs to addressed and our responsibility is to provide robust laws.

I concur with the previous two speakers that this is not the way to hold Committee Stage. Committee Stage is a mechanism with which to tease out problems in legislation. It is useful in spotting loopholes or mistakes made in drafting, which parliamentary draftsmen, the Minister and Members on this side of the House will acknowledge. As I said earlier, it is very difficult to produce legislation which is free from anomaly but we should try to achieve it as far as possible.

It is a pity we do not have enough time with this Bill, because of its emergency nature. At this hour it is difficult to focus fully on the urgency and importance of getting it right. I will not oppose the Bill but urge the Minister to address the other issues that have arisen, because we are only putting sticking plaster on the problems. Given new technologies, such as the Internet, and the sexualisation of children we need legislation to prevent people abusing the greater openness of today's society. Hopefully that work will be done in the coming months so that, by September or October, it is concluded and the all-party agreement that exists in respect of this Bill can ensure we have the best laws possible to deal with sexual offences, which we can be proud of and which take account of future developments as far as possible.

This Bill is not time-sensitive, as was the legislation dealing with risk equalisation. Perhaps we should have spent more time on it today or even allowed a full day later in the week to discuss it properly on Committee Stage, once we had time to reflect and reconsider after Second Stage. There should have been a delay between Committee Stage and Report Stage because that is a vital period in which the Minister and the draftsmen can reconsider the points Members have made. However, that cannot be done tonight because the draftsmen do not have quick answers to the points raised.

On Deputy Jim O'Keeffe's point, the Bill refers to the 1998 Act in the list of legislation referred to. It is a matter of drafting style as to whether we should include everything. I do not believe that much hangs on whether reference should be made in the section to the Act of 1998. Including such a reference might make the section more easily readable or it might make it less so. I am of the view that section 6 is quite clear and that one would not be obliged to consult the list in order to discover which legislation is the Act of 1998. That is merely a drafting point and I do not wish to make an issue of it.

When Deputy Rabbitte pointed out on Thursday last that a difficulty existed, I did not know whether he was right or wrong but I assured him that if there was a problem, I would deal with it as quickly as possible. He issued a statement on Friday asking me to deal with it as a matter of urgency and presented his Bill. Fine Gael also presented a Bill. My approach in respect of this matter has been to try to achieve a consensus rather than engaging in arguments as to who produced the better text. I took the spirit of the Labour Party Bill and the text of the Fine Gael Bill and tried to achieve a fair blend of the two in order that we might deal with this matter today. I am trying to deal with it as a matter of urgency.

Despite what was stated earlier regarding the origins of the 1993 Act, it is a strange anomaly in our law that it was a summary offence, triable only summarily and with no power of detention for questioning, to ask a child to engage in sexual activity. I do not know why that was the case or how we arrived at that position.

Did the Minister obtain an explanation as to why the number of prosecutions began to fall?

I have not been in a position to do so. I cannot really answer the Deputy's question save to say that prosecution policies are laid down by the Director of Public Prosecutions. All the Department of Justice, Equality and Law Reform does is sponsor laws. It does not contact——

It is fair to ask why it happened.

I am not clear as to why use of the provision appeared to dry up. It may be that a more serious view was taken in respect of offences of this type and that an effort was made to deal with them on an indictable, rather than a summary, basis. Perhaps that is what happened. However, I cannot say much more because I am not privy to the prosecuting policies that are adopted in respect of these matters.

I took on board Deputy Rabbitte's statement on Friday that this deficiency should be met on an urgent and agreed basis. It is not a stroke on my part to take the Fine Gael point of view. I did not want a situation where the House would become involved in parallel debates, on the one hand, in respect of grooming and, on the other, soliciting, and where there would not be a meeting of minds as a result. It occurred to me that if I examined Deputy Jim O'Keeffe's Bill and came to the opinion that it was good, I should not then decide that we would deal with its subject matter on another day because of the need to deal with this issue now. I thought I would create a division within the House by deciding that the Deputy's priorities would not be mine or vice versa. I am trying to be reasonable in respect of how I am dealing with this matter.

Deputy Jim O'Keeffe very reasonably complained that I did not tip him off regarding the use of his Bill. I thought the first action I should take was to obtain the views of my colleagues in Government and I did so this morning. The draft version of the Bill before us was only circulated to them before today's Cabinet meeting.

We are anxious to produce proper legislation and a certain amount of time is necessary in that regard. The Minister may have noticed that a number of my colleagues on this side of the House did not contribute to the debate on Second Stage. A number of them stated that they wished to speak on the Bill but they did not have sufficient time to study its provisions. It is a great pity that it was not possible for more Members to contribute. Rushed legislation tends to be bad legislation. The more time people are given to consider legislation, the better it is for everyone.

Various Members eloquently made the point that enactment of the Bill will mean that we will merely be presented with a further part of a patchwork quilt. Inevitably, more holes will appear in that quilt as time passes.

I made the point, in respect of Deputy Peter Power's intervention, that it is a patchwork quilt. Our law is scattered across an archipelago of individual Acts.

There are 70 years' worth of Acts.

I take the point that the law should be consolidated. Unfortunately, however, we are not in a position to do that work now and we will not be able to do it or implement the report of Deputy Peter Power's committee until we resolve this fundamental constitutional question. There are some obstacles to a consolidation.

On Friday, Deputy Rabbitte welcomed the fact that I had cleared the decks in order to make time available today to deal with this issue on an urgent basis. I am trying to deal with it on just such a basis. I am not trying to take advantage of anyone; I am merely trying to maintain unity in the House.

Question put and agreed to.

I move amendment No. 1:

In page 3, line 30, to delete "inserted" and substituted "as substituted".

This amendment is merely technical in nature. I do not propose to delay proceedings and I merely offer the wording in the amendment as a better alternative to that contained in the Bill.

The Parliamentary Counsel prefers the language used in the Bill.

Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill."

I did not have an opportunity to table amendments and I will, therefore, make any points I wish to make in respect of the various sections.

Will the Minister indicate when the act of solicitation or importuning actually occurs? At what stage does an offence arise? What requirements must be met in the context of proof in order to bring a charge — such a charge will now be indictable — of soliciting or importuning? Will the Minister clarify what is involved? I was somewhat alarmed by Deputy Howlin's comment that this type of charge has apparently fallen into disuse and that where such charges were brought in the past, they are no longer brought. Is there a difficulty from the point of view of proof or otherwise?

I would not state that there were no such charges. However, Deputy Howlin is correct that there appears, in the context of prosecuting policy, to have been a decline in the use of the summary offence. Perhaps it is the case that mere verbal remarks were not provable beyond a reasonable doubt and that attempts——

There were more than 30 convictions in 2000.

Yes. When the Deputy provided his figures, I was struck by the thought that perhaps they were used in respect of child prostitution cases. It is not clear why——

Were the children prosecuted?

No. Adults were prosecuted for approaching child prostitutes.

There cannot have been that many. I would have thought that it might be children——

I am not in a position to offer a view on that point. If I did so, I would only be speculating.

We tried to obtain reasons that language which includes terms such as "solicit" and "importune" were used in previous statutes. It is clear that this does not have to be for the purpose of prostitution, so, since 2001, it does not have that narrow meaning.

The point I made is that it never had that meaning.

It was never intended that it would have that meaning after 1993.

The position was crystal clear after 2001.

A particular event obviously prompted someone to decide in 2001 to make it clear that it could have a meaning relating to a non-prostitution context. I do not know why such action was taken.

On the issue of prostitution, I take it that relates to the payment of money or money's worth.

No. The payment of money is not the issue. Soliciting a prostitute does not involve paying money. Kerb-crawling would amount to soliciting a prostitute and it was prosecutable as a summary offence. It was not regarded as an indictable offence. It was the division of that offence into two categories that led, I believe, to this particular offence being regarded as a summary offence in the past.

I would draw the House's attention to the fact that we are dealing here — this is a point that will arise later on a Labour Party amendment — with offences under section 2 or 3 of the 2006 Act or an offence referred to in section 2 of the 1999 Act which is sexual assault.

I welcome that.

One of the important matters is that we bear in mind that the offences we were dealing with last year were very grave sexual offences whereas if one is soliciting somebody to come into a bush, a bedroom or wherever, it is not easily determined whether one is speaking of one of the grave offences or a relatively — I will not use the word "minor"——

——less grave sexual assault-type offence. At the point of solicitation, unless some remarkably clear language is used, one must be in a position to include sexual assault in it as well because otherwise it is extremely difficult to prove that it is for that purpose.

Another point that will arise later on the Labour Party's amendments, is that this is gender neutral. That was one of the reasons it occurred to me last weekend that it was not simply a matter of looking to defilement of girls or whatever with which we were concerned which was the offence to which the solicitation offence originally applied, but that young boys, especially in the context that we were dealing with last week, had to be comprehended in exactly the same way by whatever legislation we put in place.

The one point I want to emphasise is that if we do not make it indictable — I think there is a consensus that we should——

——there will not be detention powers.

Arrest powers.

Curiously, there is an arrest power under the 1993 Act, but there is no power as regards detention for questioning. It is essential in these cases that we deal with it that way.

There is also the question if one is dealing with a summary offence — there may be some exception for children offences but I think I am correct in saying — that it must be prosecuted within six months of the commission of offence. Most summary offences, in any case, are so prosecuted. The issue of time limits would arise for this offence which might not otherwise arise, and by making it indictable we get around that issue as well.

Before we get to my party's amendments which have been trailed by the Minister, I want to state that I welcome the inclusion of the sexual assault provision, which goes further than the draft Bill the Labour Party produced last Friday and which is a good addition.

In terms of the genesis of this legislation, I posed another question but I do not know whether the Minister has had an opportunity to address it. The confusion arose over the 2001 Act in which section 250 was quite clear that it did not relate solely to prostitution whereas the explanatory memorandum circulated with the same Bill specifically stated it was increasing the penalties for acts related to prostitution. I do not know how that confusion and conflict between the explanatory memorandum and the Act came to be, but we are where we are on section 2. I thought the restatement of the 1993 offence in the 2001 Act was there to clarify and crystalise the position, or at least seemed to do so on reading it.

I do not know whether I will get an opportunity to deal with the broader issue which for me, as a non-lawyer, it is a complex one, namely, the constitutionality provision that Deputy Rabbitte raised earlier.

I will deal with that.

Will the Minister deal with it in some other context or in the context of this section?

I can deal with it in this section because if the point were correct, I should put it in as a defence in this section as well.

That is the point.

I have discussed this with the Attorney General. Sexual assault to which I have just referred is part of our law and in the CC case was expressly——

The Minister explained that.

——preserved because of its different legislative history, although it used to be called indecent assault. However, it is interesting to note that sexual assault is not now the subject of any express defence. In 2006 we did not state that there is a defence of honest mistake in the case of sexual assault on a minor but just took the Supreme Court's decision at face value and stated that somebody accused of sexual assault must be entitled to raise the defence of not having a guilty mind——

Until or unless we change it.

——unless and until we change it.

On whom is the onus of proof?

That is the question I posed.

I am just making the point that the general law is that proof beyond reasonable doubt lies on the prosecution and, therefore, it is necessary for the prosecution to exclude beyond reasonable doubt the possibility——

Is the onus on the prosecution?

Yes, in a sexual assault case.

Is it not wrong to leave it so in this legislation?

That is where we left the law of sexual assault. What I am saying is that in nearly all of these cases one will not get solicitation which is clearly for an act of intercourse as opposed to a sexual assault. Solicitation will rarely be put in terms which makes it clear that it is for——


——a completed act of sexual penetration compared with some other form of sexual deviancy with a child. Therefore, there would be a peculiar position if we started erecting defences now to this particular offence without going down the road of providing an explicit defence for sexual assault cases as well. I am trying to contain the entire operation. Unless one contains the legislation, this is a little like a chain of dominos in a room where if one pushes one and it falls and hits another, the implications grow ever wider.

Let us be clear that the Supreme Court decision in the CC case rotated around the seriousness of the offence and the fact that there had to be mens rea and that excluding mens rea was an unconstitutional approach. We are now in the position that the law relating to what used to be called indecent assault and which is now sexual assault is subject to the honest belief defence. If that is the case in sexual assault, it must be the case in relation to this offence as well. For instance, if one was soliciting a child over the Internet or over a phone to have sexual intercourse with one, the prosecution would have to prove that one knew one was dealing with a child. There could not be a situation where one sent a text message, it landed on a child’s phone and that fact alone put one in a position of proving the reasonableness of one’s view or whatever.

A different situation would arise when one would meet that person.

It probably would, if the child was visibly a child.

However, if the child was not visibly a child, then it is a matter where the Supreme Court's decision applies.

If the Minister would allow me, this is one of the most critical issues and that is why it was raised by the leader of the Labour Party today. Although I was relatively reassured by the Minister's comments on Second Stage, I am much less reassured now for the following reason. The Minister is now confirming that the general application of the constitutional principle determined last year by the Supreme Court has universal application and all legislation is presumed to capture it.

Is he also saying that under this Bill, the burden will fall on the prosecution to prove that the person soliciting knew that the individual solicited was under age? We should seek to delimit such a provision. While we have to preserve the right to claim a mistake until such time as the Constitution is amended, we could surely require that such a belief is reasonable. Could we insert a reasonableness clause so that proof does not rest with the prosecution to the point of unreason? This is an important issue because the Bill will otherwise fall at that hurdle.

This is an important area. In terms of the pendulum, on one side could be a situation in which the accused is not even allowed to plead an honest mistake.

That is not constitutional.

That has been declared unconstitutional. However, the other side is that the entire onus is on the prosecution to prove guilt beyond reasonable doubt. In terms of this Bill and this area of the law, a middle ground could be found that is much fairer and does not debase the fundamental principles of our legal system. That might require the prosecution to make a prima facie case which the accused must answer. It would then be a matter for the accused to prove objectively that ——

To prove that care was at least taken.

There may be a subjective or objective test as to whether the accused had an honest belief or took some care to ascertain the age of the victim. That territory should be further explored from the point of view of delineating its limits.

We discussed this issue last year. It is not easy to address it because the distinction which Deputies are attempting to draw is somewhat artificial. At the end of the day, if the jury has a reasonable doubt about whether the accused knew the child was under age, it must acquit in the aftermath of the Supreme Court's decision.

A trial might not go as far as a decision by a jury if the prosecution could not prove beyond reasonable doubt an honest mistake was not made because there would probably be a direction to acquit.

That is my very point. If there is no evidence from which a jury could draw an inference beyond reasonable doubt that the accused knew the child was under age, perhaps the accused is entitled to a direction. I am not going down that road with this Bill; I am merely saying we are dealing with exactly the same situation that exists with regard to sexual assault.

Maybe that is not good enough either.

That is the point I am making. If I begin to go through the law on sexual assault, this Bill will become immensely long and complicated and I will start addressing problems which nobody thought about before we started this evening's discussion. I do not want to reopen the question of whether a genuinely held belief, even though unreasonable, is a defence because, according to my recollection of the Supreme Court decision in the CC case, as long as the belief was honestly held and even if it was an unreasonable opinion, it is a defence. Therefore, section 2(3) of the 2006 Act states:

It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years.

Section 2(4) continues:

Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant honestly believed that, at the time of the alleged commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of 15 years, the court shall have regard to the presence or absence of reasonable grounds for the defendant's so believing and all other relevant circumstances.

That does not mean an honest but unreasonable relief is not a defence. We are back to the old conundrum, so the decision we have made in respect of the Bill before us is to leave the issue of guilty knowledge on exactly the same basis as applies in the case of sexual assault and to push it no further.

I understand the Minister's point, although I am not content with it because I believe it will cause difficulties in bringing successful prosecutions under the section. We will clearly not resolve the issue this evening and, as I have tabled a number of amendments, I am anxious to press on.

If we amend the Constitution to provide for strict and absolute liability offences, we will be able to deal with the issue in a much more comprehensive way. At present, we are dealing with an imponderable.

When and if we change the Constitution, will we not have to deal with the issue? We will be inserting an enabling provision into the Constitution to allow the Oireachtas to determine the circumstances in which reasonableness is a defence.

We will have to revisit the issue.

Question put and agreed to.
Question proposed: "That section 3 stand part of the Bill."

This section epitomises the point made earlier regarding patchwork quilts. Subsection (4), which amends the Civil Legal Aid Act, states:

Section 26 of the Civil Legal Aid Act 1995 is amended, in subsection (3)(b), by the substitution of “an offence under section 6 (inserted by section 2 of the Criminal Law (Sexual 35 Offences)(Amendment) Act 2007) of the Criminal Law (Sexual Offences) Act 1993, or of an offence under the Criminal Law (Sexual Offences) Act 2006” for “unlawful carnal knowledge under section 1 or 2 of the Criminal Law Amendment Act, 1935”.

I wonder how a law student could make any sense of that, never mind poor unfortunate legislators. To be blunt, it is legislative gobbledygook of a high order. We should be aiming to draft legislation which people can understand, if not at a first reading, then at least with a second glance. Anybody coming fresh to that subsection could spend the night wondering what in the name of God it is about.

While the subsection certainly does not make itself clear, it should be acknowledged that its intention is to fix yet another mistake which was made last year, whereby the right to civil legal aid was abolished in certain circumstances. I welcome the provision but it is plugging yet another gap.

Is Deputy Howlin sure it plugs the gap?

I do not know because, again, we are dependent on the Minister. I presume that is the intention of the section.

When I realised last Friday that we had gotten this wrong, I decided we should search extremely carefully to make sure no other mistakes have arisen because I could imagine what the gentlemen opposite would say if my good friend Finbarr O'Malley found an error.

We had prepared an amendment, the wording of which was much simpler than the section as it stands.

I can appreciate that. We did a thorough search and, in terms of these procedural aspects of the law, we dealt with every case in which sections 2 and 3 of the Criminal Law Amendment Act 1935 were mentioned in any other statute. We have updated the law to take account of that.

Does section 3 stand part of the Bill?

Question put and agreed to.
Question proposed: "That section 4 stand part of the Bill."

There are two typographical errors in this section. The top of page should read paragraph "(aa)”, not “(ia)”, and section 4(3) should refer to “12B”, not “12A”.

Is the Minister tabling these changes as amendments?

I understand the clerk proposes to deal with them as typographical errors.

Is that agreed? Agreed.

The same remark applies to this section as the previous one.

Question put and agreed to.

I move amendment No. 2:

In page 5, between lines 32 and 33, to insert the following subsection:

"(3) The Schedule to the Act of 2006 is amended, in the row relating to the Criminal Law (Sexual Offences) Act 1993, in the third column of that row, by the deletion of "Sections 3 and 4" and the substitution therefor of "Section 3".".

This is an important amendment and the Minister referred to this issue earlier. The amendment reverses the repeal of the offence of gross indecency. The offence was created under section 4 of the 1993 Act, which was repealed in the Schedule to last year's Act and we seek to amend the Schedule to reverse the repeal of that offence. On Second Stage, I mentioned it was patently clear in the Ferns Report that the offence of gross indecency had a major relevance to the enforcement of criminal law until the Minister abolished it last year. I do not know whether that was by mistake or intent because he has signalled both since. However, this offence comprised a significant part of the charges laid against Fr. Sean Fortune, allegedly one of the most egregious offenders who occupied much space in the Ferns Report.

The legislation is primarily before us to rectify one mistake in the 2006 Act but it does not deal with another error, which I presume was the inadvertent decriminalising of the offence of gross indecency. When I pointed this out, following the short time I had to conduct analysis with my legal advisers on this last year, it was hotly denied by the Minister in the House. I had to leave the House to have a letter typed up, which I handed to the Minister to make the point with emphasis. He then took a different tack and pretended that the offence was obsolete but, in last weekend's newspapers, the Department put out the line that the abolition of the offence of gross indecency was intended all along on the basis of gender equality. The bottom line is the offence provided a measure of protection for young boys aged between 15 and 17 years until it was abolished last year. This protection was deliberately crafted and put in place by the former Minister for Justice, Máire Geoghegan-Quinn, when she presented the Criminal Law (Sexual Offences) Bill 1993 to the House.

I fully accept there may well be issues regarding gender proofing of age based on a zone of exemption but the offence should not simply be abolished pending resolution of that issue. The offence should remain in place and the broader issue can be addressed because there are issues to which we must return. This lacuna should not remain. The measure was designed to protect young boys aged between 15 and 17 years and it was deliberately inserted and crafted by Máire Geoghegan-Quinn before being deliberately or inadvertently deleted last year. I ask that it be restored and if there are issues relating to gender equality, we should deal with them, as we have resolved to deal with other issues relating to the legislation at a later date.

The 2006 Act prohibited certain sexual acts, including sexual intercourse, buggery or acts described in section 4(1) of the 1990 Act such as sexual defilement involving humiliation and aggravated circumstances of that kind. However, what we have now is a situation in which a girl aged between 15 and 17 years can engage in heavy petting with a boyfriend aged over 18 without him committing an offence. If I acceded to the Deputy's amendment — I do not say there is no argument in favour of it — heavy petting between two males would result in the older male committing a criminal offence of gross indecency.

I take the Deputy's point about the Ferns Report but, by the same token, I am not attracted to a situation in which an 18 year old gay boy who has a 16 year old gay boyfriend would engage in a criminal act where if they were a heterosexual couple, it would not be a criminal act. This is a matter for judgment, which is not that easy. It would be very difficult for me now, whatever about last year, to say I have been thinking about this for a year, which I have not, and I have decided to revert to the old system.

Was the offence deliberately abolished last year?

There was confusion in the House and I eventually said if I was wrong, I would——

That is fine.

When I eventually unravelled what happened, a view that it was not defensible to make this distinction emerged and if we were striving for gender equality, on which the Bill was predicated, we should not say it is okay for girls to do with their boyfriends what boys could not do with their boyfriends, subject to protecting children from potentially serious damaging sexual acts, set out in the legislation such as buggery, sexual intercourse, bondage and other humiliating acts.

I welcome the Minister's frank explanation, which is a significant advance on last year. We are trying to grapple with difficult issues and nobody is gainsaying that. The Minister is correct that we are making law that has general application. However, I did not have the case of an 18 year old gay man who has a 16 year old boyfriend in mind. I have in mind a 16 year old boy being inveigled into a sexual act by a much older man. When she decriminalised homosexual acts between consenting males and set the age of consent at 17, Máire Geoghegan-Quinn felt it was important in doing so to insert a zone of protection for those aged between 15 and 17 years so it would not be open to older people to inveigle children into sexual acts with them. There is still a case for that. I had to read the Ferns Report in detail because it concerned my constituency. This issue so parallels many of the offences in that report, particularly those committed by Sean Fortune, and they comprised the bulk of the charge sheet against him, but those charges no longer exist. I am not content that is right, although there is obviously some logic to the Minister's explanation. My preference is to err on the side of the zone of protection, even if it is intrusive in respect of young people. On whether boys of 16 years should be engaged in this sort of behaviour, I am not saying it should be criminalised for the 16 year old, and it would not be under this provision. However, it would be for the older man, someone over 17 years. There is a case for it.

I am not arguing that the Deputy's point of view is ridiculous or anything like that. I am not getting on some politically correct high horse and saying there is no substance to the Deputy's point. What I am saying is that one might say very heavy petting, including masturbatory behaviour, by a girl aged 16 years with a man aged 36 or 56 years——

It should not be encouraged either. Should it?

——is extremely unattractive as a notion, but it is not a crime.

Should it be a crime for the 36 year old?

Perhaps it should be a crime and maybe we should look at that. However, whatever we do, I do not believe there is a basis for saying a 16 year old gay boy should be dealt with differently from a 16 year old heterosexual girl in the same circumstances. I do not see there is a huge difference between the two. If, as a Legislature, we say a girl is entitled to behave in a manner which would amount to gross indecency with a much older man, I do not see how we can say we should criminalise it just because there are two males involved. That is the only view inherent in the 2006 Act, namely, that it was a gender neutral Act in so far as we could make it one.

I do not know how it sounds to the Minister but the notion of a 36 year old man engaging in the type of activity he described with a 16 year old girl is not acceptable either.

I am not suggesting it is but it is not criminal.

Should we consider including that protection for boys and girls up to the age of 17?

All I will say is that before we go down that road, let us remember it was Deputy Jim O'Keeffe who caused ripples at our all-party committee by saying he wanted the age of consent to be stuck at 17 and that Deputy Howlin and I took a different view. The answer to that is: "I do not know." This is not an easy one and I do not want to get into the matter.

The principle of the 2006 Act was that it was gender neutral in so far as it could be with one exception, namely, that we did not want to criminalise pregnant girls. Subject to that exception, we approached it on the basis that an offence could be committed equally against boys and girls and that all acts which were not criminal with a boy were not criminal with a girl. That was the approach we took.

If I were to accept the Deputy's amendment, I would be turning back the clock and saying that a 16 year old girl can commit certain acts with a 50 year old man but a 16 year old boy cannot. I am not particularly happy going down that road. That is the position in which we find ourselves.

The bottom line is whether the Minister is happy to leave both boys and girls aged 15 in that situation. That is what doing nothing achieves. Is that where we will leave it?

Deputy Howlin should become a barrister because he is putting an awful question to me, namely, whether I am happy that both should be in a situation where one of them is and one of them is not criminalised.

I have earned my parchment.

I do not know whether I am happy with the concept of a 16 year old girl engaging in heavy petting with a 55 year old man. All I can say — to use the old colloquialism — is that what is sauce for the goose is sauce for the gander.

I can only say I would not like any of my daughters, aged 16, to be involved in heavy, light or any other petting with a 55 year old man.

It is not criminal.

On this issue, my support swung from one side to the other depending on who was speaking. I could understand from where Deputy Howlin was coming and his anxiety to protect young boys, yet there is the view that whatever we do should be gender neutral as far as possible. I will stay out of it on this issue.

Courageous as always.

I am genuinely not sure what is the correct approach. It indicates these are issues we should explore in much greater detail and on which we should take much more advice if we are to get the best answer. This short discourse will not produce the type of circumstance to enable us to get the best answer.

We had a fairly vigorous debate on civil unions recently and I do not believe Deputy Howlin would have made this point before that audience.

That is an unfair point.

It is not.

The debate for the past 20 minutes or so is proof of what we all said earlier about the complexities and problems with this type of rushed legislation. This is the third loophole we have identified. There are probably many other anomalies. This section begs the question what we were doing in 2006 because we are now introducing a range of new penalties and increasing the sentence from two to five years. I am not questioning the increase but what happened between June of last year and now to result in an increase in the sentence to a longer period. Why did we not set it at five years last year?

We need to return and debate the complexities of this at the earliest opportunity. Other anomalies and loopholes will be highlighted as cases are taken and as barristers and the courts grapple with this legislation and the 2006 Act. I hope they will not affect convictions and that judges will find in our favour as legislators. This is the wrong way to conduct business.

Deputy Ó Snodaigh will concede that if there is a consensus in the House that this should be an arrestable offence and that people should be detainable for questioning for soliciting children to engage in sexual activities, the ordinary consequence of that is it would be an indictable offence carrying a five-year penalty. It would be very strange indeed if asking somebody to do something carried a heavier penalty than attempting to do it to them. That is all we are providing for.

I am very strongly of the view that this matter has created a lacuna in the law. I am impressed by the Minister's explanation. There is a requirement that the law should be as gender neutral as possible. The Minister made the exception last year in regard to pregnant girls. We cannot always follow that general principle.

We will have to return to this issue. In the meantime, I will not press my amendment because the issue has received a fair airing and a fair explanation of the Minister's stand has been put to the House.

I overheard the debate on this interesting subject, which is similar to a matter on which I have corresponded previously with the Tánaiste by way of parliamentary question and it should not surprise him. As the law stands in respect of minors and their protection from predators, I can testify there is virtually no protection. My experience in this regard suggests the amendment under discussion would leave parents asking who will look after the interests of the child in the case of an adult male predator, for want of a better description. The agencies to which one has recourse are the Garda, the health services and, in the case of a schoolchild, the National Educational Welfare Board. In the case to which I refer, all three were approached and nothing happened despite repeated parliamentary questions and repeated raising of the issue.

It was not that no one knew of the circumstances but that clearly no one wished to respond despite the fact that the child was 17 years of age and in some quarters might be deemed to be sufficiently adult to be able to give consent. However, parents' views must also be taken into account. The mother of the child in the case in question was rendered distraught by the suggestion that an adult male predator was able to take control, encourage the child away from home and win. Moreover, despite their best efforts, the parents failed to elicit a response from any agency. This is extraordinary and the Tánaiste should investigate the circumstances because I tabled questions subsequently.

Ultimately, the parents took a civil action, went to court and won. However, the other side received free legal aid. There are extraordinary anomalies in this regard and as legislators, Members must come down hard on the side of the child and the parents, when the latter are of the opinion that something is wrong and are interested in their child's welfare. While I have listened carefully to this debate, this has not been done thus far. This matter is extremely serious and is so viewed by the parents of young people outside the House.

Amendment, by leave, withdrawn.
Section 5 agreed to.

I move amendment No. 3:

In page 5, paragraph (a), between lines 35 and 36, to insert the following:

"(1A) (a) A person commits an offence if—

(i) he or she intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and

(ii) doing it will involve the commission of an offence under the Criminal Law (Sexual Offences) Act 2006.

(b) A person guilty of an offence under this subsection is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding €5000 or both,

(ii) on conviction on indictment, to imprisonment for a term not exceeding 14 years.".

In essence, the Tánaiste has replicated part of a Bill tabled by the Fine Gael Party in respect of grooming. I understand it mirrors section 15 of the United Kingdom enactment. I suggest the inclusion of section 14 of the United Kingdom Act in the legislation before the House because it deals with the issue of grooming itself. In the United Kingdom Act, sections 14 and 15 complement each other and go together. However, only section 15, which pertains to travelling, is to be put into Irish law. Is there a reason section 14 of the United Kingdom Act, which deals specifically with the grooming element, should not also be mirrored in Irish legislation?

Deputy Jim O'Keeffe was the original proposer of this Bill and the same path has been followed by the Tánaiste. Is there a reason this provision was not included? Would accepting my suggested amendment not strengthen the provision? I acknowledge it has been lifted from the United Kingdom provision. Sections 14 and 15 of the United Kingdom Act appear to be both complementary and necessary.

I considered the part of the United Kingdom Act that formed the basis for the Fine Gael Bill to be fairly clear and explicit and that it almost could be adopted as it stood in its entirety. As mentioned earlier, I am prepared to take on board the technical changes suggested by the Tánaiste.

However, I am unsure whether this section of the United Kingdom Act translates readily into Irish law. Were the Tánaiste and his officials happy with it, I would be inclined to go along with it. I considered that the question of grooming, which involves communication with and subsequent travelling to meet the child, is clear and explicit and could be dealt with. However, I am unsure whether the manner in which it is proposed to transpose this section of the United Kingdom legislation is clear and explicit. As it stands, it probably requires further teasing out before being translated into Irish law.

While listening to the debate and considering its history and the point to which it has brought Members, particularly in respect of this section and the proposed amendments, I have become worried that the Tánaiste's intention to achieve consensus will not lead to good or comprehensive legislation. People will not forgive Members if they get this issue wrong for the fourth time. If they so do, whoever is returned after the next election will not return to the issue until well into the autumn. Consequently, children will be left unprotected for the entire summer, or more worryingly, will have a false sense of protection. In respect of the section under discussion in particular, the Minister is now lifting individual provisions from other legislation and is transposing them without taking account of their context within the legislation introduced in the United Kingdom. Members should not put together laws to protect children in this fashion and I have grave concerns about such legislation.

I am also concerned about implementation. Where are Members going with this issue and how will it be implemented? Where is the protection? Members should consider that last year, 300 children who came to Ireland seeking protection and who were placed in the care of the Health Service Executive went missing. While I am sure there were many reasons for this, when one considers the legislation before the House and the manner in which it is being introduced, I do not see that Members are giving children the protection they need or deserve. Moreover, I am worried that people will not forgive Members for rushing this through again. This issue pertains to rushed legislation. When one takes a serious look at the complexity of legislation such as this and realises how difficult it is, I do not think it can be dealt with in this manner, particularly considering the issues we discussed during the past few minutes on whether one has a zone of complete protection from 15 to 17 years and whether it is extended to both males and females.

I am getting very worried listening to the debate. The Minister cannot for the sake of consensus do it in this fashion. I do not want to be one of the people who reads headlines during the coming months telling me an awful crime was perpetrated and somehow we did not legislate to protect children. It must be done, but is this the best way to do it? Will we offer complete protection to children? If not, parents will not forgive us.

This should be put in context, and the context is that the Department of Justice, Equality and Law Reform is working on a major bill, the Criminal Justice (Trafficking in Persons and Sexual Offences) Bill, which will deal with the question of grooming in a comprehensive way. The UK Sexual Offences Act 2003 is extremely far-reaching legislation. I would not be immediately attracted to some of its provisions which is why I took what Deputy Jim O'Keeffe tendered as a balance. It had an adjustment of the child pornography Act of 1998 to amplify the protection for children and a particular offence of travelling having groomed. Those are the two offences he chose, one of which is based substantially on section 15 of the UK Act.

Section 14 of the UK Act is worrisome.

It is quite difficult to interpret.

It is very difficult to interpret and one would not know what one was doing by enacting it. I feel if I produced section 14 in a Bill and sent it to the Attorney General's office the staff would, as they have done on a number of occasions, state it is so vague it is impermissible. If one wishes to criminalise something, one should state what one wants to criminalise.

It is quite opaque.

It is extremely opaque. To be fair, my officials examined the Fine Gael Bill and saw what was done. It tweaked the 1998 pornography Act and brought in a travelling having groomed offence. Those are two fairly safe changes.

I am grateful to Deputy Howlin for raising this issue. It underlines that certain provisions introduced in UK legislation are extremely vague in their ambit. Section 14 of the UK Act states:

14(1) A person commits an offence if—

(a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and

(b) doing it will involve the commission of an offence under any of sections 9 to 13.

Section 14(1)(a) is extra-territorial in context. Sections 9 to 13 of that Act encompass a series of child sex offences.

I do not wish to make a point on Deputy Howlin's drafting. However, his amendment states "doing it will involve the commission of an offence under the Criminal Law (Sexual Offences) Act 2006", which is territorially bound to Ireland. It does not lie easily with the previous subsection in his amendment which mentions "any part of the world". I do not want to go down this road.

Returning to a point I made previously, interestingly the amendment does not cover sexual assault. To commit this version of the offence, one must prove it was for buggery, intercourse or the aggravated sexual activity in the 2006 Act. A mere sexual assault would not be covered. Therefore, one must prove exactly what type of perverted behaviour was in contemplation when the arrangement was made. It would be almost impossible.

One could have e-mails.

I am grateful to Deputy Howlin for drawing our attention to section 14. However, if Deputy Jim O'Keeffe tabled section 14 for my acceptance today, I would not have gone down that road and he did not do so.

There is no danger of that. At this stage, I can confirm that in drawing up the Fine Gael Bill I had the assistance of somebody who once worked in the Attorney General's office. I was happy it was largely acceptable which is why I pressed it so strongly.

I take much of what the Minister stated on this area. All the talk about Deputy Jim O'Keeffe's Bill and the Minister's acceptance of it has been on outlawing the crime of grooming. In fact, the section does not do this — it outlaws grooming and travelling. However, grooming a child for sex is not an offence and will not be after enacting this Bill unless it is followed up by someone travelling to commit that sexual offence.

We need to deal with this aspect. The Minister stated section 14 of the UK Act is vague. This is why my amendment redrafts it in a way which makes sense in my judgment. It does not deal with the offence of sexual assault because it deals with grooming for a serious offence. This was a deliberate decision made. Often, one can prove this by text or e-mail communications that were made. They would be part of the evidential chain to prove it. People do travel and one hears reports that many people travel to the Philippines to exploit children. In my judgment, the grooming element alone should be an offence.

We must wait for the Criminal Justice (Trafficking in Persons and Sexual Offences) Bill. Bluntly, it will not happen in this Dáil and this is a great pity. The Minister circulated the heads of the Bill and it is extremely important and urgent legislation. In that context, I do not wish to delay the House much further on this amendment. It is a mistake to believe the capturing of Deputy Jim O'Keeffe's proposal and the reinstatement of it in tonight's Bill by the Minister deals with the issue of grooming. It is an illusion to believe this is the case. It deals partly with it, in that grooming must be followed by the action of travelling for sex. I believe we have consensus in the House that the act of grooming should be addressed as an offence in itself. I know it will be when the Criminal Justice (Trafficking in Persons and Sexual Offences) Bill eventually comes before the House. Alas, it will not happen in the lifetime of the 29th Dáil.

I accept the points raised by my colleague, Deputy Howlin. However, in drafting the Bill initially, I was cognisant of the difficulties of proving issues arising from the exchange of texts and Internet communication and the proofs which would be necessary to constitute an offence. I agree entirely that while the main issue is covered in the Fine Gael Bill now incorporated in the Minister's Bill, we need to return to other aspects of grooming. However, we covered the worst aspects of grooming which involve the initial creation of a sense of trust and security on the part of a vulnerable young person followed by travelling and meeting for the purpose of sexual exploitation. We covered the main criminal aspects of grooming. I am open to the proposal from Deputy Howlin that we must return to the other aspects of grooming and deal with them in far more detail in the future.

I welcome amendment No. 3 on section 6 and I particularly welcome the Bill. So far, we had an extremely balanced debate which is important. We all have one shared objective regardless of political view points. The objective of this legislation is to do our utmost as Members of the Oireachtas to protect children.

This is a very important Bill, which I strongly support. I feel very strongly about the issue of sexual exploitation of children, which is a horrific crime that has gone on for many years. It has occurred through history and still occurs. Children must be the priority in this debate.

I have worked with many cases of child abuse over the past 20 years and met many victims. A very good friend of mine was sexually abused as a child and I know at first hand how that person has suffered and still suffers today. It is nightmare and a living hell for many people.

I use this opportunity to say to those who bear responsibility for some of the abuse in the past, particularly the religious orders, that they must reflect on the way they acted and treated some of the victims. It is an issue that must be dealt with.

It is important that the Bill provides for a grooming offence, and I welcome that important provision. A number of Deputies have mentioned other countries and the act occurs in certain other nations. I will not name the countries as I do not believe it fair to label different countries. We all have people in our societies and countries who exploit and sexually abuse children.

I welcome the debate and will strongly support the amendments.

Is Deputy Howlin pressing the amendment?

I do not know if the Minister wishes to comment. He has indicated that he has published the heads of the Bill.

I will repeat what I stated on Second Stage. We are working on a major piece of legislation relating to grooming. It is very difficult to create grooming offences and we must be extremely careful about the language used. Deputy Jim O'Keeffe's two proposals in his Private Members' Bill occurred to us as reasonable amendments which were safe, and he tip-toed around the unsafe aspects. That is no bad thing as they could cause us all to hesitate if we were to discuss enacting them this evening.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 5, lines 38 to 40, to delete all words from and including ", having" in line 38 down to and including "occasions" in line 40.

It is not clear why it is necessary to have prior communication on two occasions. Did the Minister pick that number for a reason or would one occasion be sufficient? Is it there because a mistake could be made by an individual who would not know the age of a child? I seek elaboration on this aspect.

As I understand the background to the British legislation, this provision mentioning "two occasions" was inserted in order to avoid any doubt but that there had to be an established pattern of behaviour before the offence was committed.

Why would that be?

The Deputy may ask why that is so. Their approach was that if there was an established pattern of behaviour, they would be in a better position to convince juries the act was no accident, misunderstanding or impulsive action, but a careful grooming pattern. The person would have put in place on a number of occasions steps to bring about the encounter with the child.

I can see how that would be very helpful to the prosecution in getting a conviction. If somebody made contact with a child abroad and explicitly sought to plan a rendezvous for a sexual encounter, before travelling and having the encounter abroad, no offence would be committed unless it was done more than once.

That is not so, of course, because if the person actually did——

Yes, if they actually had sex.

——do something to the child that would be a different matter.

I did not read Hansard on this matter. As I understand, the British draftsman wanted to make it very clear that in order for this offence to take place, an established pattern of behaviour, and not just a once-off text message or something similar, would have to be in place. Grooming, conceptually, is not just simply making an arrangement to meet somebody but teeing up the child over a period of time with a view to inducing the child to be available. It is the difference between soliciting or importuning, which we are dealing with elsewhere in the Bill, and grooming, which is a pattern of insidious behaviour and making arrangements for the child.

I agree that one could look at the section and ask why the stipulation for at least two communications in the past. This was to establish that this offence was committed where a prior pattern of communication existed.

I have to accept responsibility here. I initially raised questions about this when we were preparing the original draft.

The Deputy can explain it to us.

First, one would ask what is meant by grooming. It was put to me that grooming did not arise from a chance encounter, and I accepted that ultimately. From that point of view, in order to prove grooming it had to be proved that a person lulled a child into a sense of false security and trust and that, essentially, it would not be grooming if that arose from a chance encounter on one occasion. It would have to be shown that there were two encounters or communications to achieve, as mentioned by the Minister, a pattern qualifying as grooming.

The view might be taken that there should be a separate offence.

There is. It is soliciting or importuning.

Exactly. I was asked earlier about the exact definition of soliciting and importuning.

Does that include a "more than once" stipulation?

That is the distinction.

Does that have extra-territorial effect?

To importune a child within the State——

No. Would the importuning or soliciting be in effect if the child was not in the jurisdiction?

So it would not capture the point.

Not extra-territorially.

Yes, and I think much of this would be extra-territorial. That is the idea of the travel provision.

There is the 1996 Act as well.

Is that the Sexual Offences (Jurisdiction) Act 1996?

Bringing the child out of the jurisdiction for the purpose of sexually exploiting it is an offence.

We cannot wear blinkers on this.

No, but we must be clear on what we are doing.

On the raw reading of the section, one might wonder why there must be two occasions before the act would become an offence.

It is a legitimate question.

I sought to transpose section 14 of the UK Act to an Irish context to fit into last year's Sexual Offences Act because that establishes the separate offence of grooming. If we are depending on section 15 of the UK Act alone, there is no parallel grooming offence, inadequate as the Minister deems it to be in the UK legislation. We do not have such an offence and will not have it following the enactment of this legislation. It seems to be a lacuna and yet another issue we will have to return to with the comprehensive package on which the Minister has drafted heads of a Bill. There are many more holes to deal with in future.

We should be honest. If we are to codify the law we must deal with all of these issues.

That is true.

If we are going to have a zone of absolute protection we must revisit all these issues. If we are going to have a referendum we will also have to deal with them. We are now dealing with the situation which occurred last Thursday in this House and I am trying to deal with it. I am not dealing with a future situation, which will occur after a referendum.

What we are dealing with now comes as a result of the issue being identified last Thursday, and that came about because of rushed legislation. Most people want to know whether this legislation will protect their children until we have a consolidated Act that deals with all of the issues identified.

On grooming, I understand the requirement for two contacts. The English drafters wanted to verify whether a person backed off even after meeting someone who was obviously a child. It involves being clear on the person's intentions. Grooming does not always take place on the Internet, via texting or abroad. The expert in this matter is Dr. Kevin Brown, who works for the UK Government and makes the point that paedophiles often move into new areas because they have identified children they consider targets. He makes the point that the first contact can be——

In person.

——distinct and that the identification of the child can be done, for example, by passing a playground. We must get the important issue of grooming right because it is sometimes the parents rather than the children who are groomed. The paedophile is allowed to become part and parcel of the family's immediate circle and a trusted friend.

While the child becomes the victim, we must cater for this difficult matter in the forthcoming legislation. It was what transpired in respect of most of the sexual abuse that occurred in Ireland.

The legislation on grooming will be complicated, but we must get it right. I wonder whether this legislation will protect our children until we address more comprehensive legislation.

I wish to support the previous speaker. It is important that we not make information technology or the Internet out to be the enemy in this regard. We must consider long and hard about the dangers to which young people are subjected through their families and family friends. We should not ignore that issue in the debate.

There is a danger that too much attention is given to tabloid headlines on Internet usage and the fact that young people are using Myspace and Bebo to meet new people and make new friends. This new social network is not wrong and should be welcomed because it is part of what a young person does today. We should be careful not to criticise it.

We must revisit some of the protection afforded young people and we should ensure the Stay Safe programme is available in every school and teachers, parents and young people are informed about what can happen. That said, we should be careful not to scapegoat new technology. We should ensure proper safeguards are in place and that children are protected when they are with their families, friends or family friends as well as in the context of emerging technologies.

No one is scapegoating the Internet but it has considerably greater potential. Chat rooms do not exist on telephones except in a different sense.

One can multicall.

I gather that they exist on 3G telephones.

If the Tánaiste rings the appropriate number, he can multicall.

Those rooms are rare. One is traceable if one participates in a chat room. Parents who are afraid for their children can control a great deal, but unless they sit behind the children while on-line, they cannot determine what sites are being visited and what is being said. There is a heightened risk.

I take Deputy Lynch's point that irrespective of the Internet, a determined paedophile can go to extraordinary lengths to insinuate himself or herself into the company of parents and children. We should not be blind to that fact, but we should acknowledge that what Deputy Peter Power stated is true, namely, children are being bombarded on all sides by ideas, images, a lack of values and sexualising material as part of the new information age to which Deputy Cuffe referred. No matter how vivid our imaginations were 30 to 40 years ago, we were not in the same place. Human nature changes to some extent, but it does not in other senses. Whereas Ireland in the 1950s had its fair share of dirty thoughts, occasions of sin and so on, we are in a different world.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 6, line 31, before "inviting" to insert the following:

"in the case of a child who is more than 5 years younger than the person concerned,".

I tried to read the legislation today. The last part of the Bill causes concern, namely, the definition of sexual exploitation. The proposed subsections 3(a), 3(b), 3(c) and 3(d) are fine, but the definition in subsection 3(e) includes “inviting, inducing or coercing the child to participate in or observe any activity of a sexual or indecent nature”. Inviting a child to participate in any activity of a sexual nature would become an offence under this provision.

The Labour Party welcomes the offence of travelling to meet a child for the purposes of under age sex. The House is unified in outlawing such, but we want to enshrine the provisions in a logical way. In the new subsection 3(e), the Tánaiste proposes that it be an offence to travel to meet a child for any sexual purpose, regardless of the age of the person, who may be a child himself or herself, meeting the child. For example, if an 18 year old girl made an arrangement to travel to meet a 16 year old boy to engage in intimacy — I am not referring to penetration — she would be committing an offence although the acts committed are not offences. It is an anomaly that travelling to do something that is not an offence could be an offence itself because of this provision’s broad sweep. While I am sure such is not intended and that the people involved would not be prosecuted, the law as defined is open to that interpretation.

I sought a way around the difficulty because there is a requirement to avoid the exploitation of children. After the hour or two in which I had to consider the matter, I would suggest introducing an age gap. In the case of a child who is more than five years younger than the person concerned, the exploitative motivation could justify a criminal provision, but two young people arranging a rendezvous for a snog should not be criminalised, which is not our intention. Encompassing any activity of a sexual nature as a potential offence under this section strikes me as being a broad canvas.

It is important that we look at the whole of section 3 of the Child Trafficking and Pornography Act 1998. It reads:

(1) Any person who organises or knowingly facilitates—

(a) the entry into, transit through or exit from the State of a child for the purpose of his or her sexual exploitation, or

(b) the provision of accommodation for a child for such a purpose while in the State,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.

(2) Any person who—

(a) takes, detains, or restricts the personal liberty of a child for the purpose of his or her sexual exploitation. . .

Sexual exploitation is given the particular meaning with we are dealing. It is not as broad as one might think. It criminalises somebody who takes, detains or restricts the personal liberty of a child for the purpose of his or her exploitation. Exploitation now includes——

Will the Minister please read that again?

Subsection (2) refers in paragraph (a) to a person who takes, detains or restricts the personal liberty of a child for the purpose of his or her sexual exploitation, in paragraph (b) to a person who uses a child for such a purpose, and in paragraph (c) to a person who organises or knowingly facilitates such taking, detaining, restricting or use. Such a person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 14 years. I am just making the point that this definition of sexual exploitation is restricted to certain activities which are criminalised under the section. It is not a general statement that anybody who exposes a child to observing sexual activity commits an offence. It is not that broad. That would amount, in effect, to turning on a blue movie in a room or something similar.

That is what I am worried about.

The point I am making is that the preceding sections require one to take, detain or restrict the personal liberty of a child for the purpose of his or her sexual exploitation. It is not just a matter of turning on a blue movie in a room or something similar.

What does "to detain a child" mean? Does it mean——

It means——

Is it, in effect, an 18 year old inviting a child into a bedroom?

No, it means to take control of a child. I do not believe a child turning on a blue movie in front of another child would commit that offence.

I worry that we have a very wide definition. I sat down the other evening with my kids and the programme "100 Sexiest Artists" was on MTV. The definition the Minister is using is wide open.

Does the Deputy mean by restricting the personal liberty of his children for the purpose of so doing?

Joking apart, that is true, but the definition is wide open in talking about activity of a sexual nature. There is an enormous amount of material on television channels such as Sky that could be seen as of a sexual nature. We should be cautious in introducing such catch-all definitions. I take the Minister's point about taking, detaining or restraining, but on the other side this is a very broad definition of activity.

I seek clarity from the Minister. Perhaps he could reflect on the matter. He is reading out subsections (1) and (2) which I understand have nothing to do with the Bill. The new definition in the new subsection (3)(e) will apply to a new offence under subsection (2)(a). Therefore, his quote to the House about taking, retaining and all the other things is irrelevant.

As regards the change from the 2004 Act, where the amendment was made under section 3(1)(a) of the 1998 Act——

Acting Chairman

Perhaps the Minister might give an answer.

Let him answer my query first.

I shall deal with Deputy Howlin's question. There is the insertion of a new subsection (3) in section 3 of the Act. I do not know whether the Deputy has the 1998 Act to hand.

That is my problem.

I can send a copy over to him and perhaps he can see what I am talking about.

The Minister read out subsections (1) and (2) of——

I read from subsections (1) and (2) of section 3.

Of the 1998 Act.

Yes, correct.

Acting Chairman

Perhaps the Minister might deal with Deputy Jim O'Keeffe's query while Deputy Howlin is reading the legislation.

Was there a particular reason for changing the reference in the amendment to the principal Act, in this case the 1998 Act? Instead of having it referred to as subsection (3)(a) it is now referred to as subsection (2)(a). Is there a particular reason for this?

It is purely a drafting matter.

It was not a question of relating it to a particular section or subsection.

Acting Chairman

Is the Deputy satisfied?

I am concerned to ensure we get this right.

The point I am making to Deputy Howlin is that under the 1998 Act, section 3 provides a definition of sexual exploitation. The term "sexual exploitation" is used in section 3(1)(a) and section 3 (2)(a).

Section 3 reads:

(1) Any person who organises or knowingly facilitates—

(a) the entry into, transit through or exit from the State of a child for the purpose of his or her sexual exploitation, or

(2) Any person who—

(a) takes, detains, or restricts the personal liberty of a child for the purpose of his or her sexual exploitation . . .

Is the Minister saying that applies to this section?

I am saying subsection (3) defines what sexual exploitation means. In this instance we are widening the definition of sexual exploitation, but it is only relevant to those committing an offence under the preceding subsections.

That is the very point on which I am not clear. The Minister is capturing the definition of sexual exploitation, expanding it in the last section, but applying it to a new offence.

That is correct, but I am also applying it to the pre-existing offences.

I am not concerned about that. I am applying this new broad definition to the new offence under subsection (2)(a). Is the Minister content?

Yes, I am content to do that.

I shall have to think about it further. I wish we had more time to consider this matter and come back to it on Report Stage because I am not content that the broadness of the definition I am suggesting does not apply. I need to cross-reference the 1998 Act with it again. We are back to the situation we dealt with last year. On the floor of the House we are cross-referencing legislation. The Minister is doing his best to give us assurances, but he really does not have the time either to be certain as regards the impact of the Bill when enacted.

I am saying the definition of sexual exploitation in subsection (3) is relevant to subsection (1) and paragraphs (a) and (b) of subsection (2).

That is fine. I am not concerned about that.

Therefore, in order to commit an offence involving that definition, one must commit one of those described in subection (1) and paragraphs (a) and (b) of subsection (2).

As well.

That is the definition of sexual exploitation. In other words, if one is talking about kidnapping somebody and restraining or depriving him or her of his or her liberty, it will be used for that purpose. It is not creating a general offence as regards somebody turning on a blue movie in a room. That is not what the section, as amended, means.

That is not what this section, as amended, means. To be committing an offence, one would have to be taking, detaining or restricting the personal liberty of a child for the purpose of his or her sexual exploitation.

I understand sexual exploitation to mean something.

The Minister is now broadening the definition of sexual exploitation.

It will cover "showing——

The definition now refers to "any activity of a sexual or indecent nature". Does that include heavy petting, to which the Minister referred earlier?

It refers to any activity of a sexual nature which is an offence.

Where does it say that?

Where is the Deputy quoting from?

I refer to the definition of sexual exploitation.

The Bill states that "inviting, inducing or coercing the child to participate in or observe any activity of a sexual or indecent nature" will constitute sexual exploitation.

To detain somebody to observe any activity of a sexual nature will constitute sexual exploitation.

If one brings a child into a room for the purposes of observing——

A blue movie.

Yes, if it involved one of the earlier offences.

Is it not possible that the person who detains a child, or brings a child into a room, could be a child himself or herself?

It is highly unlikely.

It could happen.

That could happen under the existing law too.

I know. I am just teasing it out. Could the activity of a sexual nature involve two young people snogging?

No, it would not cover two young people snogging because that is not an offence.

Is it not an activity of a sexual nature?

The child would have to be deprived of his or her liberty.

The reference to detention is separate.

What if one was babysitting?

If one is babysitting a child, one is not detaining the child.

I am trying to tease out whether these provisions would apply if one was not allowed to leave one's house, and then one's boyfriend, who is more than two years older, arrives. I am thinking on my feet. This provision is a very broad stroke. I expect the Minister to say that prosecutions would never be brought in such circumstances. That is the only safeguard in this regard. We should be as precise as we can in this legislation.

I am happy with Deputy Jim O'Keeffe's amendment.

The Minister is offloading the responsibility for it.

It is Deputy Jim O'Keeffe's fault.

I do not think the provision is unduly wide. It believe it is a serious offence to take a child someplace and deprive him or her of his or her liberty for the purpose of observing sexual activity.

It is probably reinforced by the subsection that refers to previous communications on a number of occasions, which introduces a grooming aspect to it.

If depriving a child of his or her liberty and then obliging him or her to observe sexual activity is not grooming, I do not know what is.

The Minister has referred to taking, detaining and restraining. Babysitting, by its very nature, involves detaining the child under one's care.

It does not. I do not accept that proposition at all.

The Minister must never have done any babysitting.

Some people would argue that he needs a babysitter.

My concern, essentially, is that if a child is under one's care, one could be seen to be detaining the child.

We have a Constitution, a law and a set of judges who are reasonable people. I do not believe that babysitting amounts to the detention of children. I do not believe anybody would interpret the act of babysitting in such a way.

I am mindful of the fact that Deputies are hanging around and obviously want to exercise themselves before they leave. I tabled these amendments to tease out certain aspects of this Bill.

I appreciate that.

It has been very helpful.

At every step of the way, we have unveiled the complexity of the legislation in this area and the absolute requirement for care in that regard. Anybody who reads the transcript of this debate will be less secure in their belief that the House has legislated well for these matters. I genuinely believe we will have to return to this issue at an early date. I am not looking forward to the complex and difficult debate that will ensue on that occasion. We will have to make judgment calls on a number of issues. I am not convinced that the Minister's explanation of the last point we considered is accurate, but I do not have time to reflect on it adequately or get proper advice on it. The net point is that it is important to enact two provisions into law. The first of those provisions will close the gap we identified last week. The second provision, which was proposed by Deputy Jim O'Keeffe, has been embraced by the Minister. It will prohibit grooming and travelling to use children for sexual gratification. It is important that we adopt those two measures.

Careful work needs to be done throughout this area because there are large holes in the body of our child protection law. The consolidation Bill that has been promised by the Minister needs to front-loaded. The production of such a Bill in any area is complex, but it will be particularly difficult in this area. Perhaps the Minister will indicate a timeframe for that Bill. Does he have a team of officials working on it on a full-time basis? When can we expect the Bill? It is obvious that those who are developing the Bill have to presume that the House will speedily pass a resolution to cause a referendum to be put to the people and that the people will allow us to create the zone of protection that the all-party committee envisaged. A substantial amount of work can be done, with that proviso, to improve the existing law vastly. We will have to make some hard calls.

Deputy Jim O'Keeffe and I have been in dialogue with the Minister of State with responsibility for children, in particular. I do not know what the Government's firm view is on the development of a zone of protection based on age. I do not know what its settled view is on the age of consent. We need to go beyond political deft footwork to the point of determining what we can agree on a consensual basis. We should not try to hand-trip each other on these matters because they are too important. We need to provide for a general joined-up process. It was too smart by half to have a protection amendment ready to roll, in the absence of any mention of an agreed zone of protection in terms of age, or an agreed age of consent for sexual intercourse. The Government needs to outline its views on such matters so we can make progress with them speedily. I will not pursue amendment No. 5. All of my amendments have unveiled the frailty of this enactment, which is far from comprehensive. It attempts to plug one identified loophole, but we will have to try to plug many other loopholes very soon.

I take the point that Deputy Howlin is making. The Deputy and I, along with many others, worked hard over many months at the committee chaired by Deputy Peter Power to develop an agenda for reforming the child protection law. In that context, we appreciated that the law would have to be restated. It is hard to pull it all together because it is spread over a pile of difficult and obscure statutes. Our consideration of the sexual abuse of children must form part of a broader consideration of sexual abuse among adults. We really need a restatement of our law in relation to sexual offences generally. It should also be stated and acknowledged that the law on sexual offences is complex. There are moral, judgment and value issues to be considered and also gender and sexual orientation issues which are sensitive. There is no point in codding ourselves about all these issues. It is not an easy area of law to deal with and if it was easy, doubtless we would have had significant reforming Acts. I refer to the Non-Fatal Offences Against the Person Act and legislation relating to fraud and theft offences which are significant codifying statutes. However, this is a difficult area.

Last Friday I was informed that it was to be welcomed that the House would address the issue of section 6 of the 1993 Act but as the Deputies have seen, dealing with it has been slightly more complex than was then thought; if it was to be made an indictable offence, there were certain consequences and certain other knock-on effects of changing the law which had to be dealt with. Last Friday, Deputy Jim O'Keeffe tabled a Private Member's Bill on an issue which was of immediate relevance to many people — the issue of grooming. I could have allowed Deputy Jim O'Keeffe proceed with his Bill and then I could ignore it while dealing with the narrow issue. If I had done so, this would have been a very unsatisfactory evening because we would have been like trains on different tracks, talking about the same issue but never meeting and with no meeting of minds. My officials and I looked at the Fine Gael Private Members' Bill. We saw it had been careful not to trespass on to the more controversial areas of grooming which must await the more comprehensive legislation. It had taken what I believe to be an improving but careful approach which most people would say was a desirable improvement in the law and which would give confidence that something was being done about people who planned to prey sexually on young people. We decided that rather than have an inconclusive debate in which the Fine Gael Bill would be accepted by the Government and then fall into limbo, we should try and give it the impetus of enactment if possible. I have taken the spirit of the Labour Party Bill and the substance of the Fine Gael Bill and done my best to make sure the two are dealt with in this measure. I have done this on the basis that I wanted to unite the House.

I fully accept and agree with what Deputy Howlin is canvassing, namely that all this underlines the proposition that a comprehensive new sexual offences law is needed. I advance the second proposition that we also need to clear up this issue of the absolute zone of protection because legislating in this area without clearing this issue up will be deeply unsatisfactory, for all the reasons canvassed in Deputy Peter Power's committee.

The Deputy raises the point that it was too clever by half to propose an amendment to the Constitution allowing for an absolute zone of protection without stipulating in advance what the Government's view about the age of consent should be. This is an issue on which I respectfully beg to differ from him. It is possible for this House and after a general election it is possible for the newly-elected Members of this House later this year to decide where they want to be on that issue.

There should at least be a steer from the Government of its belief before people are asked to vote.

There is not really a party political division on this issue.

I agree there is not.

The Deputy and I had one view and Deputy O'Keeffe had another.

That is true.

It is not an exact science. It is a case of talking about 365 days. I know that a year is a long time in the life of a child but the Deputy is talking about a fairly arbitrary distinction, one way or the other. All I am doing in this legislation is trying to give this House an occasion on which to unite to bring about small but significant improvements in our law and to deal with the anomaly that arose from the failure to comprehend section 6 of the 1993 Act in the changes we made last summer.

Before other Deputies speak on the general point, I wish to finalise my comments on amendment No. 5. I am conscious we have only 15 minutes remaining.

I wish to be clear about amendment No. 5 but I will not be putting it to a vote. Section 6 creates a new subsection 2(a) of the Child Trafficking and Pornography Act 1998. It is a new offence. The key point of the new offence is visible in subsection 2(a). The new offence will be to meet a person for sexual exploitation after two prior contacts. Sexual exploitation is defined as meaning what subsection (3) says, including inducing or coercing a child to participate or observe any activity of a sexual nature. I think that stands alone from the provisions which the Minister has quoted regarding capturing or corralling or whatever other phrase was used. It is a stand-alone provision and I believe my interpretation of it is correct. It shows that both the Minister and I need more time to be quite clear and explicit on these things.

I refer to the case of a person who communicates with a child on a number of occasions and then travels to meet that child with the purpose of inviting, inducing or coercing that child to participate in or observe activities of a sexual or indecent nature. In my opinion, that is grooming the child and is sexual exploitation of that child.

It could be two children, an 18-year old arranging to meet a 16-year old, for the purpose of snogging.

I do not accept that proposition.

It is the fact. The Minister did not accept my proposition last year but he was wrong.

I do not accept the proposition that any reasonable court could construe the section——

Now we are talking about the courts interpreting it. I will leave others speak. I genuinely believe my interpretation — as it was last year denied by the Minister and proved to be right — is right in this case now.

I do not believe that somebody who goes to visit a child, having telephoned that child twice in the child's life before, and who kisses his girlfriend in front of the child, is committing an offence under this section.

I did not say that.

When the A case legislation came through this House six months ago I raised concerns and suggested we would be forced to revisit this legislation within six months. I specifically proposed an amendment suggesting the House would revisit the legislation within six months. Little did I know that my wish would be granted and that the Minister would have to come back to the House to propose new legislation. I feel a sense of déjà vu. Deputy Howlin is showing up some of the problematic areas within the legislation. Members only received the text of the Bill this morning. It is unacceptable to expect all parties within a matter of hours to digest complex legislation and ensure it is watertight. It is ironic to be considering changes in legislation, given that only last summer the House was trying to close the loopholes. I have concerns about this section. I worry about the loose definitions listed in section 6(3)(e) of inviting, inducing or coercing a child to observe activity of a sexual or indecent nature. I am worried the Minister is suggesting that a reasonable court would not interpret the proposed legislation badly. We are doing a rushed job, as we did last summer. I humbly suggest we will probably have to revisit this legislation in the coming months. It is important that we put on record the need to consider this legislation more calmly. I am sure the consolidating legislation to which the Minister referred will enable us to do this, but I feel uneasy at rushing through legislation at what is literally the eleventh hour. It is late in the day but we have had less than 24 hours to consider the Bill.

Is Deputy Howlin pressing the amendment?

I believe my view is right but I will not press the amendment.

Amendment, by leave, withdrawn.
Section 6 agreed to.
Section 7 agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.