JOINT COMMITTEE ON THE CONSTITUTIONAL AMENDMENT ON CHILDREN debate -
Wednesday, 23 Jan 2008

Child Protection: Discussion with Rapporteurs.

Chairman

I welcome Professor Finbarr McAuley, criminal law rapporteur for the legal protection of children, and Dr. Geoffrey Shannon, the special rapporteur on child protection. I propose that each witness make a presentation. The members of the committee have received and are very appreciative of the rapporteurs' valuable work.

The Vice Chairman of the committee is Deputy Michael Noonan. In the interest of adhering to our schedule, perhaps the delegates will present their five main points. Following the presentations, members will ask questions. Delegates do not enjoy parliamentary privilege, although I am sure they will not make hell-raising remarks. I call Professor McAuley.

Professor Finbarr McAuley

I thank the committee for inviting us to present our findings. Would the Chairman prefer if I kept my presentation as brief as possible?

Chairman

Yes. Perhaps I did not state that plainly enough.

Professor Finbarr McAuley

That is a great relief.

Essentially my report concentrated on the issue of strict liability. Its principal conclusion was that strict liability should be reinstated as the cornerstone of the criminal law governing statutory rape. The principal recommendation on foot of this conclusion is that it will be necessary to amend the Constitution to permit it to happen. A legal regime built on the principle of strict liability should be structured such that experimental sexual behaviour between children of comparable age would be excluded from the ambit of a newly-configured offence of statutory rape. These are my two key proposals. To recapitulate, the first recommendation is that strict liability be brought back as the cornerstone of the offence of statutory rape and, second, that in order to permit this to happen, there should be a constitutional referendum on the net issue.

I do not know whether the Chairman wants me to refer to all the sections of the report or say a sentence or two on each.

Chairman

The professor may do so briefly.

Professor Finbarr McAuley

The opening section of the report simply examines the 1935 Act and makes fairly obvious observations on how it was integrated into Irish law. There is jurisprudence to be borne in mind in this regard, particularly Shaughnessy v. Ryan of 1960. This underlines or attempts to state the rationale of the old offence of statutory rape. The Attorney General (Shaughnessy) v. Ryan [1960] attempts to state the rationale of the old offence of statutory rape. In that instance the court indicated that the point of statutory rape was to protect young girls not alone against lustful men but against themselves, indicating that the rationale for the defence was paternalistic. As with every example of legal reasoning, one could construe that broadly or narrowly. I follow that through in the report so will not go into it now.

While the principle behind section 1 of the 1935 Act is sound, to protect young women from lustful men and to some extent against themselves, it is somewhat over-inclusive. I make several observations on that point in the report, for example that unfortunately it did not distinguish between a predatory male, whom everyone thinks of in connection with statutory rape offences, and the boyfriend, whose exploitative intent is less clear. The Director of Public Prosecutions traditionally did his best to observe that distinction. There was an understandable reluctance to prosecute in cases that did not deal with the paradigm of the predatory male but with some form of sexual experimentation between people of comparable age. The evidence for this, however, is anecdotal. The objection to the Act is that if it were being applied strictly on the basis of the legislation all those cases should have been prosecuted. When the Legislature considers this again it should perhaps make that distinction.

The next part of the report deals with the Supreme Court's wrongful decision in CC v. Ireland. It argued that strict liability involved punishment of the morally innocent. With respect to the court and to anyone here who takes that view, I disagree. If strict liability is properly construed it does not entail the punishment of the morally innocent, therefore much of the objection set out by the Supreme Court falls away. If a male understands that he is taking the risk of having sexual relations with a woman who may be under age that is blameworthy conduct and the idea that the male does not have any mens rea seems wrong. I should perhaps have made the point in the report that the Supreme Court is doubly wrong not just because of the risk element but because everybody in the CC case, including the defendant, agreed that he knew that he was committing a section 2 offence, having sexual relations with a woman under the age of 17. It was accepted on all sides that there was some discussion about her age and he believed she was 16, as she had told him. That would make him guilty of a section 2 offence. To describe his state of mind as morally neutral or blameless was plain wrong. There was enough basic constructive liability there to attach liability for the full offence.

There is a problem when constitutional law and criminal law collide, as they must inevitably in our legal system because the Constitution is the basic law of the State, but the Supreme Court should get the law right when it exercises its constitutional jurisprudence and be more sensitive to the Constitution's fundamental doctrines than it appears to have been in this case. This may not fall within the remit of this committee. Criminal law is replete with instances of constructive or strict liability. The laws on murder, and manslaughter, have significant elements of strict liability at their heart. The Supreme Court is not here to defend itself but the notion that strict liability is an anomalous, abhorrent irregular feature of the criminal law seems wrong. There was no argument in the CC case on this point although there was an argument about traffic offences which was as close as it came to considering the incidence of strict liability elsewhere in the law. If that matter was properly litigated and people reconsidered it they might, I hope, take a different view.

My recommendations are based on that reasoning, if I have summarised it accurately. The Legislature needs to reconsider sexual offences. The 2006 legislation was not a great success. I say that with the greatest respect because I know the Chairman and her colleagues were operating in a highly charged environment when it was introduced. Under the circumstances the Legislature did a decent job. Sexual offences are an integrated whole and if the law in this area is being reconfigured people need to stand back from it and systematically review the law on sexual offences as a whole. The Law Reform Commission would be the ideal place to start that process followed by the policy division of the Department of Justice, Equality and Law Reform and ultimately the legislators. People should have a comprehensive sense of how the bits of the jigsaw puzzle, including statutory rape, should be fitted together. That is why I stopped short of saying too much about how any new offence should be configured in detail. There should be a new offence of statutory rape. I am a keen codifier and the essence of codification is that separate wrongs should be separately and independently labelled. That is the way to go in a democracy. If one thinks a given pattern of behaviour is wrong and should be punished, it should be named, labelled clearly and separated from other wrongs. It is not right to have an omnibus provision such as defilement into which one chucks everything from statutory rape to various forms of non-standard rape, including rape itself. That seems to be an over-inclusive approach.

Chairman

I thank Professor McAuley. Would Dr. Shannon give us the benefit——

Deputy Brendan Howlin

Could I suggest that we question the witnesses separately?

Chairman

Alright. It is open to members to put questions to Professor McAuley.

Deputy Brendan Howlin

This presentation is extremely important. I just wanted to get some clarity as regards the views expressed by Professor McAuley. I have obviously read his submission and the analysis of the C case as well as his recommendations at the end of it. He has an opportunity to read the report of the previous committee, and its recommendations. On the specifics, he strongly recommends the return of the concept in law of strict liability. Does he have a view as regards age? I believe the consensus view is that the draft constitutional Bill suggests an enabling provision for the Oireachtas to create an offence of strict liability of up to the age of 18. What, in Professor McAuley's view, would be an appropriate age to set? He mentions also the notion of a closeness in age exemption. How does he see that being presented? Would it be in legislation in parallel or by way of constitutional initiative? Another issue he mentions in his recommendations is concerned with people in authority. Again, this matter was dealt with by the last committee. What is his view as regards how this committee should recommend and how the Oireachtas should move in relation to people in authority

Professor Finbarr McAuley

The Deputy is quite right. I took careful note of the position articulated in the report to which he alluded.

Deputy Brendan Howlin

I should have made one further observation as regards Professor McAuley's comments about the Oireachtas and the legislation that was enacted. He made a general comment about understanding the pressure the Oireachtas was under by way of forgiving us all for our sins. Some of us were very critical of that legislation, argued trenchantly on the floor of the House in relation to it, and voted against it. I say this by way of clarification.

Professor Finbarr McAuley

The Deputy is surely not disowning it. The point I was making was that the Legislature passed the Act.

Deputy Brendan Howlin

I have no ownership of it to disown. I voted against it, as I disagreed with it. I believe it is very flawed legislation. It is extraordinary of itself that the Minister proposing it introduced it as flawed legislation.

Professor Finbarr McAuley

I took a look at the report to which the Deputy referred and I was not minded to be too specific and partisan on the very difficult thorny issue that he has raised, the question as regards how to calibrate the issue of age. Speaking as a lawyer, I do not believe I have any more competence on that point than, say, the driver of the No. 10 bus or any citizen. Strictly speaking, it is not a legal issue. In saying that I do not for a moment envy the legislators the difficulty involved. That is the type of awful issue they must tackle, presumably after extensive consultation. I am not ducking the issue, but I just do not feel I have a special, or indeed, any competence to make a firm judgment in that area. I suggested in my report that when I talk about people of comparable age, as regards sexual experimentation, I am speaking there as a father. I do not want to say I plucked it out of the air, but the notion that if children were within a couple of years of each other one might reasonably describe their relationship as sexual experimentation. The age ban I am suggesting may not be the ideal one, and other people in this room might have a better take on it, but the essential point of principle provides, I believe, that closeness in age should literally mean that. Once one moves away from that it is different. For example, in the C case the young man was 19 years of age, while the young woman was 14. I do not consider that sexual experimentation. There may be experts in this room who take a different view, but that is my instinctual reaction.

I am afraid I cannot help the Deputy beyond that, as I do not believe it is a legal problem.

Deputy Michael Noonan

I thank Professor McAuley for his report and for his comments, which were very illuminating. I was somewhat intrigued by his statement that he disagreed with the Supreme Court decision. Many of us here were surprised at the time as well. I recall when I had Deputy Brian Lenihan's job and was Minister for Justice, a fraught referendum proposal was going through the Department of Justice. In a state of frustration, I asked Mr. Andrew Ward, the Secretary of the Department at the time, what the words actually meant. He said "Minister, they mean whatever the Supreme Court decides they mean".

It does not get us anywhere to disagree with the Supreme Court. It leaves us in the position that there is only one way to proceed, and that is by way of referendum. The second statement Professor McAuley made, which I also thought interesting was to the effect it might be better if the whole question were approached through the Law Reform Commission, with every issue being teased out at that level and then referred back to the Department of Justice, Equality and Law Reform. Then it could be submitted in an ordered fashion to a committee. The conclusion I draw from that is that if this is the view we will not do it before St. Patrick's Day, which is effectively the deadline we have. Everything Professor McAuley said was interesting, but from my viewpoint his views on codification were especially so. If one is an advocate of codification and is very specific as regards what the crime is and the punishment attached, there is a very strong argument for decoupling the strict liability issue from the general issue. In effect, as Deputy Shatter said earlier, if one decouples and there is a stand alone constitutional amendment codifying the issue, and effectively reversing what the Supreme Court decided, then on a very narrow focus, we know exactly where we stand without importing many issues on which we might not be so clear. Again, I take from Professor McAuley's contribution that we certainly need a referendum and much more time to explore the totality of the issue of children's rights and whether, if they are not already, they should be underpinned by the Constitution. On the issue of decoupling we should go for the stand-alone amendment in the first instance and follow the advice on codification he was proffering.

Professor McAuley

I am no constitutional lawyer, but the referendum issue, it seems to me, could be tackled quite independently of the substantive issue of what any law subsequently enacted should look like. The only point I want to make clear in respect of the content of any law passed after a successful referendum is that it would be better to examine the ideal content of that law as part of a systematic review of sexual offences as a whole. I am not saying to wait until that review was completed but at least, the net issue might be looked at. For example, should we go back to the offence of statutory rape and prise it apart from the pattern of behaviour that might come under the general rubric of sexual offences? One would not need to wait for the full sexual offences Bill before that was done but one would have to think about it in the context of such a Bill.

Senator Frances Fitzgerald

I thank Professor McAuley for his comments. I am interested in two aspects of this. One is the urgency as regards the need for a referendum. I want to ask about that in the context of a 16 year old girl who is raped by an older man, and who goes for advice to the Dublin Rape Crisis Centre, say, or to a lawyer. What protection does the law give her at present? Would the advice be to take the case?

Professor Finbarr McAuley

Let me ask the Senator a question. The current law, for all its defects, is reasonably clear. What difficulty does she foresee? What impediment does she envisage?

Senator Frances Fitzgerald

The difficulties I foresee relate to the points made by the professor in support of the case made on the need for a referendum. In the absence of a referendum, as the law stands, does such a young woman have the protection of the law? Would she be advised to take a case? That is just a simple question to which I would like an answer, if it can be answered.

Professor Finbarr McAuley

I imagine what the Senator has in mind — I sympathise with this point, if that is what she has in mind, given that the Legislature has spoken and a defendant is now entitled to rely on a defence of mistake of fact. I suppose it follows logically that, in the context of a criminal case, the girl would be subject to cross-examination in order to probe the veracity of the defendant's claim about her age. I think the whole point of strict liability in this context was to prevent this from happening. Is that not the logic of the old offence? If that is the burden of the Senator's argument, I personally sympathise with that view. I always felt, for all its warts and flaws, in so far as it did not force young women to endure such an ordeal, that it was socially defensible doctrine in the context of statutory rape. We do not have that now. It follows from this, if the Senator takes the view as I do, that we should revert to the status quo ante. The case for a referendum is strong, at least on that point.

Deputy Caoimhghín Ó Caoláin

I join in welcoming Professor McAuley and note the series of recommendations at the back of his report. I concur with his view on excluding young people of a peer group who fall within a two year age gap engaging in normal or natural experimentation. If that matter has to be looked at again, fair enough. We should try to avoid a situation where invariably the young male runs the risk of being classified a criminal and having his name entered in the register of sexual offenders. Does Professor McAuley anticipate anomalies to arise, even in cases involving young people who fall within the two year age gap? We addressed briefly known predatory tendencies on the part of younger males. Within the complexities of drafting legislation and preparing for a referendum to give effect to same, is it possible to second guess a number of such eventualities and is it within our collective gift — I expect the answer must be yes — to come up with a formula of words to anticipate many of the anomalies that may present, rather than just the blanket notion that everyone within it is acting in the way that he described and that we recognise and accept?

Professor Finbarr McAuley

That is a very difficult question and any lawyer who denied the possibility that eventually one might have anomalies and difficulties would be a very foolish individual. However, the Deputy also made the point — I agree — that if the Legislature puts its mind to this, as I have no doubt it will, and consults widely; if the safety catches are provided — the ones to which I alluded; if the issue goes through a very careful process of review with the Law Reform Commission and then subsequently on the policy side of the Department — provided the legislation is not made on the hoof, given the awful pressures that bore down on the Legislature in 2006, and those constraints are absent — I am confident that legislation could be crafted that would remove most of the anomalies. Ultimately, as every lawyer knows, law is a form of geometry in that one has to draw the line somewhere, but life itself is not a form of geometry, that is the problem. Life is much messier and the lines are not straight. However, I am confident that with the proper process of review, we could come up with good legislation.

Deputy Caoimhghín Ó Caoláin

That will take time.

Professor Finbarr McAuley

I fear so.

Chairman

That was a concern that Deputy Ó Caoláin expressed in an earlier observation.

Deputy Alan Shatter

I, too, thank Professor McAuley for coming before us. During the Christmas period I read his excellent report with great interest. With great brevity, he set out the complexities of the issues involved and some of the problems that needed to be addressed. For the benefit of the committee, I ask him to expand on two issues.

On pages 19 and 20 of the report, where Professor McAuley deals with the 2006 Act, he makes the case that it provides for the defence of mistake of fact as to the victim's age. I think I am right in my understanding of both the legislation and his report, that in practice such a defence requires a subjective test, in other words, did the alleged offender make a genuine mistake of fact? If one wants to test the credibility of what the alleged offender was thinking or whether he was just pretending he had made a mistake, the court can have regard to the presence or absence of reasonable grounds. What one court regards as reasonable grounds for making a mistake of fact, another may not. Am I right in my understanding that it is the view of the professor that, in fact, it was not necessary for the 2006 Act to so address this matter and that we could have adopted the objective test set out in English legislation, where one has to establish that a person made the mistake on reasonable grounds? One does not subjectively determine that he said he made the mistake and then question whether it was reasonable; one adopts an entirely different approach, that is, questions whether it was remotely reasonable or was it reasonable to have made such a mistake.

Would it not substantially tighten the current law, even without a constitutional referendum to amend the relevant provisions in the 2006 Act to turn it into an objective test? We had an Act in 2006 and 2007. I am not necessarily suggesting we should immediately have one in 2008 and a referendum after the event and then yet another Act because that would add to everyone's sense of confusion, but it would be possible through ordinary legislation to provide some additional protection for young people against sexual predators, even without constitutional change. Will Professor McAuley confirm that in the context of providing for the constitutional change, it is essentially, in the context of strict liability, an absolute liability issue?

Let me make one suggestion in dealing with this aspect of the law. The law relating to sexual offences now ranges over a series of legislative measures. There is a need to codify and consolidate it to make it more readily intelligible.

I am going to disagree with Professor McAuley on one point and would like to give him an opportunity to reply. In my respectful suggestion this issue of absolute or strict liability can be dealt with by two steps, an enabling referendum to incorporate the proposal made in the existing provision if it was decoupled from everything else, plus the enactment of legislation allowed by that amendment to the Constitution. If it is agreed in principle that we should return to absolute or strict liability, the only issue that will then remain is that of the relevant age to which it will apply. None of us has particular expertise on this issue. The Law Reform Commission is no better equipped to make a judgment on the age issue than anyone else. It is ultimately a matter for political decision. To kick this decision back to the Law Reform Commission, as opposed to an overall codification and consolidation of sexual offences legislation, would be an abdication of the responsibility of the committee to form a view and of the Government to produce legislation.

It is urgent that we address this issue. As it stands, young people, particularly young teenage girls, are at risk from sexual predators who can throw up a defence that may be greeted with incredulity by the general public but which a court is compelled to accept. If we are agreed that it is urgent that we provide additional protection for young people against sexual predators, we should get on with devising the constitutional amendment, of which Professor McAuley very much approves. Rather than abdicating the responsibility to make a judgment as to what is the age for strict or absolute liability, the committee should bite the bullet.

I agree entirely with the Minister that if the public is expected to support a referendum on a constitutional amendment, there should be a clear indication of the substance of the legislation that will subsequently be enacted. I would appreciate Professor McAuley's feedback on this. There is no requirement that all the i's are dotted and t's are crossed, but the general outline of the legislation should be published and the age provisions made clear. If, for example, there is to be a definition and separation of people in authority from young people engaged in sexual experimentation, that should be made clear.

In simple terms, we all know what is meant by people in authority. We understand this to mean a trainer in a sports club, a teacher, a parental individual or other relation, and so on. However, there is a difficulty with the concept of a person in authority. If we were to delineate and define it in the context of the status of individuals or the functions they may exercise in their lives vis-à-vis children, a person in authority could include a 16 and a half year old babysitter looking after a 14 year old child. People can be in positions of authority where they are not granted a status or perceived as having some remit over children in a general sense. There are risks in confining strict liability simpliciter to defined personas in authority. All of us can conjure examples of people who would not fall within those definitions but who, in the context of their interaction with one particular young person, albeit not necessarily a person significantly younger than themselves, are effectively persons in authority in the eyes of the younger person.

Professor Finbarr McAuley

I will address the points in the order in which Deputy Shatter made them. He is absolutely correct in saying a higher level of protection could and should have been afforded to young women by the Legislature in 2006. My reading of the Supreme Court judgment is that section 1 was struck down because it did not include a defence of mistake but the court was careful not to be prescriptive as to how a defence of mistake should be articulated or configured. It certainly did not state anything to the effect that it must be a defence of honest mistake, the offence for which the Legislature eventually opted to legislate.

Notwithstanding the reverse onus provision, a positive inclusion, the Deputy is correct that it would afford a higher level of protection if it fell to the defendant to show why his or her belief about the victim's age was reasonable by pointing to objective criteria on the basis of which an ordinary person could see how that conclusion was reached. The Legislature did not impose such a provision. To be fair, I tried to point out in the report, without getting too technical, that it was constrained in doing so because of the implications of the Criminal Law (Rape) Act 1981. This legislation followed the notorious decision in Regina v. Morgan, the famous rape case decided by the House of Lords in 1976. In his speech on that case Lord Hailsham declared it “a matter of inexorable logic” that if a person honestly believed the alleged victim had consented, that must be the end of the argument. In other words, he or she does not have mens rea. Lord Hailsham thus ruled out any possibility that there might be a discussion or argument about the reasonableness of the alleged perpetrator’s belief.

Lawmakers throughout the English-speaking world swallowed that conclusion whole. In one jurisdiction after another legislation was introduced to codify the decision by introducing a defence of mistake and coupling it with honest belief. In the case of this State, the relevant provisions were introduced in the Criminal Law (Rape) Act 1971. To be fair, the Legislature knew this Act was in the Statute Book and, thus, that this approach to the defence of mistake had been taken. I assume that what happened in 2006 was that the Minister's officials examined the existing legislation and concluded that to take a different approach in respect of a defence of mistake would make the new legislation out of step with the version of mistake already embedded in the criminal law since 1981. Apart from the 1981 Act, it appears again in section 1 of the 1997 Act where the issue of mistake in belief as to the amount of force one can use to defend oneself arises. However, my observations on this point are speculative because I have not spoken to the officials. When I looked at the 2006 Act, I surmised that this aspect of the legislation represented an attempt to achieve a degree of conceptual consistency. However, I may be wrong.

Deputy Brian Lenihan

We received advice from the Attorney General on this issue, to which I will return later.

Professor Finbarr McAuley

My point is that I am in agreement with Deputy Shatter that if the Legislature had gone for the reasonable belief option, the situation would be better than it is.

We may be at cross purposes on the Deputy's second point. Where the age limit should be fixed is a vexed question. The Deputy says he is not an expert on this point and I would say the same about myself. However, the Law Reform Commission is in a better position because it can consult widely. Ultimately, this is a political and moral matter upon which the ordinary citizenry can be assumed to have a view. One cannot make rules on this issue that are significantly out of step with popular sentiment.

Deputy Alan Shatter

I apologise for interrupting. The committee is engaged in that consultative process. We have placed advertisements seeking submissions from the public and this is one of the issues on which we have received a response.

Professor Finbarr McAuley

In that case, the only missing element is that the committee would not have the time, although it doubtless has the expertise, to look at this issue in the broader context of sexual offences generally. That would be the only missing component but the committee may not consider that to be a disabling impediment. I agree it is not.

Deputy Shatter's last point related to the definition of persons in authority. I may be a hardliner on this but I am of the view that a 16 and a half year old babysitter would be disqualified from any type of sexual experimentation defence by virtue of the fact that he or she is a person in authority. If one hires a babysitter, the nature of the relationship between that person and the child over whom he or she has some kind of jurisdictional control is altered by that fact.

Deputy Alan Shatter

It would depend on how one defines it.

Professor Finbarr McAuley

It would.

Deputy Alan Shatter

That would be the key to the matter. I thank the professor.

Deputy Brian Lenihan

I wish to make a few points. I presume Professor McAuley does not object to being questioned by me. I appreciate that he has a contract with my Department for the codification of the law. Ministers were also present at meetings of the previous committee and it was agreed they would not question civil servants at such meetings, nor can they. However, I presume the professor has no objection to being questioned by me.

Professor Finbarr McAuley

No.

Deputy Brian Lenihan

I wish to reassure civil servants that I do not intend to question them in meetings of this joint committee.

Chairman

The Minister can do so in his own time.

Deputy Brian Lenihan

First, a proposal has been put forward. All these matters were examined by the previous all-party joint committee and a scheme of legislation was drawn up. While I appreciate Sinn Féin was not a party to it, the agreement to a scheme of legislation by the other parties means that a great deal of consultation has already taken place on this precise issue. On foot of such consultation, the Attorney General then advised the Government on the proposal that is before the joint committee, which is that no provision in the Constitution invalidates any law providing for offences of absolute or strict liability committed against, or in connection with, a child under 18 years of age. Second, the Attorney General recommended that the provisions of this section of this article do not in any way limit the powers of the Oireachtas provided by law for other offences of absolute or strict liability. This recommendation is supported by the professor in his submission. In a sense, he makes the point that without such constitutional change, we are not free to bring in the type of law for the protection of teenagers that he advocates. Is that not his net position?

Professor Finbarr McAuley

The Minister is aware that as I am not a constitutional lawyer, my understanding of the constitutional niceties may be imperfect. However, he certainly has summarised my view.

Deputy Brian Lenihan

Obviously the Government did not draw up that wording without advice from the senior law officer. I wish to raise the 2006 legislation with the professor because I assisted the then Minister in its preparation. Professor McAuley will note that the proposal before the committee refers to absolute or strict liability.

Professor Finbarr McAuley

Yes.

Deputy Brian Lenihan

I believe he will accept that absolute liability relates to a situation in which, once the facts have been proven, the person is guilty. On the other hand, strict liability may involve a shifting of the burden of proof. For example, if a defence of honest mistake is raised, the onus falls on the accused to show that he or she had made an honest mistake, both subjectively and objectively. In other words, a reasonable person would consider that it was an honest mistake in respect of age. Is that not correct? This is a form of strict liability.

Professor Finbarr McAuley

I respectfully disagree with the Minister. I have heard a line of argument articulated by eminent lawyers, including the Minister himself, that there is a distinction between absolute and strict liability and that the law recognises something called strict liability, in which there would be no element of moral guilt or blameworthiness on the part of the defendant at all. This was the line of argument articulated by——

Deputy Brian Lenihan

I am not saying that. The wording drafted by the Attorney General distinguishes between a concept of absolute and strict liability. That is my point.

Professor Finbarr McAuley

I suggest there is no such thing in the criminal law as absolute liability. I would like to see an instance of it. People talk about it in a similar manner to the story about black swans. On examination, however, it would be utterly unconscionable in respect of any provision of the criminal law to have no prospect whatsoever of the defendant offering an excuse. Even in the strict liability cases that I summarised in the report, I understand it is always the case that there must be something the defendant could and should have done to comply before liability will be imposed. In circumstances in which a defendant can show there was nothing he or she could do to bring his or her behaviour into conformity with the law, the courts will and do acquit.

Deputy Brian Lenihan

As Professor McAuley noted, he is not a constitutional expert.

Professor Finbarr McAuley

No, I am not.

Deputy Brian Lenihan

A difficulty arises in that for a referendum to be held, the Attorney General must advise the Government on the text. I draw attention to the text because Professor McAuley criticised the 2006 Act on the basis that the Government did not go far enough in framing an objective formula applicable to an accused who wished to raise the honest mistake defence. I assure him the political side was anxious to insert such a provision but was informed that what was produced was at the uttermost limit of what could be produced in this regard and that further change would require a constitutional amendment. That was the advice we received and in turn is the reason the proposal before the joint committee, which refers to absolute and strict liability, is worded as it is. It is to make clear that should this amendment be passed, the Oireachtas will have power to provide, for example, that one can raise the defence of honest mistake when a reasonable basis for it exists.

However, the Government was specifically advised that, at present, the Oireachtas is not free to so do because of the C decision. I presume the Attorney General took this view on foot of the Supreme Court's opinion in this respect and that his consideration was that it would not be safe for the Oireachtas to so legislate. The wording is formulated in this manner because of the Attorney General's advice, which was reflected in his earlier advice in respect of the legislation. Consequently I am in a difficult position in this regard as without this change, I am not in a position even to provide for strict liability based on reasonableness.

Professor Finbarr McAuley

In other words, the Minister's understanding is that he is not in a position to move to the position suggested a moment ago by Deputy Shatter.

Deputy Brian Lenihan

No. I believe Deputy Shatter suggested that liability under the age of 15 would be absolute, if I can still use that phrase, and would be strict up to the age of 17 and this would not be possible.

This difficulty pertains to the constitutional issue. The professor also mentioned some statutory issues that I do not wish to go through in any detail because they already have been dealt with in this report. However, he mentioned the idea of what, during the currency of the previous joint committee, was termed as "peer sex" or sexual experimentation.

Deputy Brendan Howlin

Or closeness in age.

Deputy Brian Lenihan

Yes. Is it correct that once this concept has been provided for, consent can become an issue in such a trial?

Professor Finbarr McAuley

Yes, I suppose so.

Deputy Brian Lenihan

This is a difficulty. In other words, if a 15 year old and a 16 year old constitute the subject matter of a case, it is clear that with the provision of a peer sex or closeness in age exemption, consent can become an issue in such a rape trial.

Professor Finbarr McAuley

Perhaps we are at cross-purposes. Would a trial be held at all? Would there be a problem if the legislation was drawn up in a manner that removed such behaviour or sexual contact between two people who came within the age band, however one calibrated it?

Deputy Brendan Howlin

The advice received by members of the previous joint committee was highly unsatisfactory from their perspective. It was that such cases simply would not be prosecuted but that the definition of any age proximity in law is fraught because it resembles using a tape measure in respect of days. Inevitably, a case would arise in which someone would fall a month outside whatever parameters one set. Consequently, one leaves the issue to the discretion of the prosecution authority, which is a highly unsatisfactory situation.

Professor Finbarr McAuley

It is. However, under the old regime, whenever cases arose I used to say, when making comments to the media or talking to students, that we do not live in a perfect world. People talk about prosecutorial discretion as though it was a form of acne. One should be thankful that the Director of Public Prosecutions in his or her wisdom will exercise that discretion and will decide in particular cases, using reasonable, fair and objective criteria, not to prosecute in the public interest. I have never understood what is supposed to be wrong with that. Were one to state the rules clearly in order that he or she can follow them without being obliged to use discretion, that would be better again but we do not live in such a perfect world.

Chairman

Life is not like geometry.

Deputy Brian Lenihan

If one provides an exemption within an age band, one then must prove consent when wrongful activity is taking place.

Professor Finbarr McAuley

I accept that.

Deputy Brian Lenihan

This constitutes a significant difficulty in this regard. The entire purpose of the law is to state that there is an age up to which a person is incapable of giving consent.

Professor Finbarr McAuley

Yes.

Senator Geraldine Feeney

My point is more an observation than a question. I surmise that when members discuss teenagers, they mean mainstream teenagers as opposed to those with a learning or physical impairment or disability. There are cases in which an 18 or 19 year old teenager with an intellectual or physical impairment has the mind of a 13 or 14 year old. When one considers topics such as higher level or absolute protection, where does such a young person fit in? Where would Professor McAuley see that person coming in? I do not want to get us into a cul-de-sac but we must bear in mind that not all teenagers or young people are mainstream.

Professor Finbarr McAuley

I am not sure I have very much to say on that. I recognise the problem but it is not unique to this area. If I buy something from somebody else, it makes a difference if that person is lacking in capacity. I would have thought that the proper way to deal with this sort of problem is under the rubric of persons who lack capacity in whatever respect. I do not think it is a problem that need bedevil the already very difficult set of problems that exist in this area. However, I accept the point.

Senator Geraldine Feeney

It is important enough to know that this person must be catered for as well.

Professor Finbarr McAuley

Of course.

Senator Geraldine Feeney

One must have regard to the level of intellectual disability.

Deputy Michael Woods

There is one question about which I am really worried in the sense that when one is dealing with the Constitution, one is generally dealing with general principles. It is then up to the Legislature to work within those general principles. The more absolute and strict one becomes, the more one creates problems like the one mentioned by Senator Feeney.

That is one of the concerns I would have. The strength of our Constitution is that it has been based on general principles which have, by and large, withstood the test of time. The core of the matter is how we get the language into the Constitution which enables us to deal adequately with protection and not create other issues and problems.

Deputy Brian Lenihan

That is why if one looks at the amendment, the third clause says the provisions of this section do not in any way limit the powers of the Oireachtas to provide by law for other offences of absolute or strict liability, because the Attorney General was worried about the point raised by Deputy Woods.

Chairman

Can I make a weather observation? The room is extremely warm. I am very sorry but I can do nothing about it. I have asked three times about it. This is addressed to everybody. The heat is overpowering and if we do not do something about it, the delegation will not come again. We must get it right or get another room because we will all pass away, which would be a great shame.

Deputy Alan Shatter

Could we get bottles of oxygen and fans?

Chairman

Cold champagne or something else. Nobody seems to be able to rectify it. I am told that they are endeavouring to rectify it. They would want to be braver than that about it.

I thank everyone for that very interesting discussion. In particular, I thank Professor McAuley for being one of the Government's rapporteurs and acting on behalf of the people and for coming along today. I invite Dr. Geoffrey Shannon to synthesise his report. He has a much fatter book to synthesise so I do not know how he is going to do it. I thank him for coming to the meeting and for the work he has done.

Dr. Geoffrey Shannon

I thank the Chairman and the committee for the opportunity to address them on the report. I will put members' minds at rest. I will only address one discrete issue which is of relevance to the committee, namely, the issue of "soft information". The other issues are statutory issues and, as such, are for another day.

Soft information is a particularly important and weighty issue. I will start by saying that the proposal on soft information is necessary because it provides for the use of soft information in the vetting process of persons who have access to children and vulnerable adults. I hope I have outlined in the report what a complex issue this is. There is a very clear need for soft information to be placed on a strong constitutional footing.

Soft information is information which comes to the attention of the State authorities, be it the HSE, VEC or Garda, that falls short of a conviction for a relevant offence. This is a particularly important and worthy proposal because it has implications for every HSE area throughout this country. At the moment, there is much uncertainty surrounding the ability of the HSE to use soft information in the vetting process.

A referendum on this issue would achieve certainty in the context of the ability of the State, in the guise of the HSE, to use soft information in the vetting process. Children form an especially vulnerable group of people in society who are often unaware of the dangers posed to them by particular individuals. As a result, any child protection system must ensure that unsuitable individuals are not permitted access to children. It is also critical in ensuring that the right to a safe childhood is properly vindicated. Thus, it is both a rights issue and a protection issue.

We must realise, and this applies across all the proposals, that this is not just one provision. This provision must sit alongside the other provisions within the Constitution. This is particularly important in the context of the soft information proposal because persons vetted enjoy certain rights which may at first glance appear to be at odds with the aim of vetting. These include the right to privacy, the right to a good name and the right to earn a livelihood.

The reason it is so important for us to have a constitutional amendment is because we must ensure that we insulate the vetting system from challenge which may damage the system institutionally. To that end, we need to ensure that the vetting procedure is placed on a strong constitutional footing.

There are two arguments in respect of this issue. Some would suggest that this might be achieved by means of legislation. I want to point out the constitutional difficulties possibly created by that thesis. If we look at the constitutional rights implicated, we can see that the first is the right to equality. Within the report, I attempt to outline the right to equality and the issues that arise under that rubric, which are not very significant. However, when we come to deal with other rights, we can see that they are more difficult.

The next right would be the right to a good name. The act of recording and circulating allegations which have been investigated and found to be unproven is fraught with constitutional difficulties. I respectfully submit that in respect of this proposal, we do not merely need the proposal itself. At the end of day, the people will be asked to vote on this proposal. How far down the road do we want to go in respect of soft information? When we think of this proposal, we think of coaches of the football team on Sunday. When people are asked to vote on this, they are going to be asked about the implications under that particular heading. It is important that we have clear legislation on this issue. I hope that my report has provided a framework as to the type of legislation that would be necessary to provide assurances to people on that particular front.

Another right is the right to earn a livelihood, which is a significant right of which we should not lose sight. Reservations based on generalised concerns about threats to a child's safety could be found to be arbitrary and unconstitutional. Again, we cannot lose sight of the fact that we are bound by the European Convention on Human Rights, albeit introduced at sub-constitutional level. We must have regard to the convention and the doctrine of proportionality. Again, it is absolutely necessary that we introduce rigorous procedural safeguards.

The next right is the right to privacy. Privacy could be said to protect soft information. How do we overcome that? We can overcome that because if breaches of the right were limited by appropriate procedural safeguards and the objective of child protection, and the common good is seen to justify those breaches, in my opinion, the objections on privacy would fail. In my report, I looked across the globe at jurisdictions that have attempted to introduce this. If we look at the fourth amendment to the US constitution — jurisprudence — we can see that this upheld compulsory drug testing of those who participate in certain activities on the grounds that those activities involve wider questions of public safety or welfare. The US courts only allow this to occur where it is regarded as being in the interests of immediate safety. Different considerations arise in respect of the use of soft information to the general public at large. This is what we must consider.

Who will be in a position to access this information? The act of publishing information to a general audience is so wideranging that it is difficult to see how it could accord with the ideas of fair procedure and constitutional justice. We return to the question of the European Convention on Human Rights jurisprudence and the fact that we only facilitate accessing that information where absolutely necessary. A scheme incorporating the dissemination of soft information must be narrowly drawn. I say this bearing in mind that I come from a strong child protection perspective, but we do not want to see any legislation being vulnerable as a result of a constitutional challenge having regard to the other rights in the Constitution.

Other issues arising include the rights of persons being cared for. We must ensure we are in a position to obtain objective information. The only method of ensuring that information is to obtain it from an objective source. In the course of the report, I examined how other jurisdictions tackled this issue, particularly the UK following the horrendous circumstances surrounding the deaths of Holly Wells and Jessica Chapman, the subsequent Bichard inquiry and what emanated from it.

We should not lose sight of international jurisprudence because it highlights the potential difficulties created by the introduction of the use of soft information. I will give a number of examples in the context of the report, such as the interesting case of Encarta v. Netball Association. We have our own example, namely, the Barr judgment in MQ v. Gleeson and others, which created a difficulty and an uncertainty surrounding the use of soft information. We need clear guidance on the issue of soft information, which can only be achieved by means of a constitutional referendum. Some thought should be given to providing for a system in which a person can appeal his or her entry onto a soft information register to an independent third party, which is how other jurisdictions have dealt with the fair trial and natural justice issues. We will consider how this might be achieved as it would assist us in improving procedural safeguards, which would be important.

Returning to the European Convention on Human Rights, any scheme devised must have three clear principles, namely, legislation must be clear, be limited in application and contain appropriate procedural safeguards. Legislation incorporating these principles must follow the constitutional amendment. Upon consideration of the jurisprudence that has emerged, the right to work with children is not guaranteed by the European convention. Nevertheless, legislation must ensure that only certain individuals are subject to vetting. The committee may need to consider how far we will throw the net. These issues will be important to the voting public and clarity at an early stage would be worthwhile.

A key recommendation of the Ferns Report was the establishment of inter-agency review groups to ensure a joint agency approach to concerns regarding child protection. Legislative safeguards must be developed to ensure an individual is notified of the exchange of information and has the opportunity to present a challenge to that information. This is necessary to protect the individual's right to a good name guaranteed under Article 40 of the Constitution and to ensure the soft information used is accurate. There must be strict controls on the accuracy of any information proposed to be exchanged and we must guard against malicious or speculative allegations. There must be stringent controls on the dissemination of such information so it reaches only those who have a need to know, ensuring confidentiality and protecting against victimisation.

I would like to turn to two issues that arose when Professor McAuley appeared before the Joint Committee on Child Protection. I hope it will be of assistance to this committee. I believed it might be useful to address Megan's law, to which one member referred, in the context of my report. I examined how Megan's law was operating. It is a range of laws passed by a number of states following the rape and murder of seven year old Megan Kanka by a known sex offender — many members will remember the facts — living in the child's neighbourhood. Could we introduce such a law in this jurisdiction? I advance the argument that there are clear constitutional issues with a law of that nature. It is the difficulty with transporting a solution from a foreign jurisdiction. Other states have adopted procedures for notifying concerned people and communities if an individual convicted of a sexual offence is released into their area. The experience across the US varies widely. Some states' laws cover those convicted of paedophilia only whereas other states allow photos and names of the offenders to be posted on the Internet. It is an issue of fair procedure, confidentiality and constitutional justice, which must feed into our deliberations.

Today, I was asked to address a conference of European family law judges in Vienna considering the issue of child protection across states, a matter of which we should not lose sight. It was at the core of deliberations on soft information. It is not a question of providing soft information in just this jurisdiction. Rather, the international community must come together to share a pool of information within all jurisdictions.

Sarah's law, a version of Megan's law, emerged in the UK. Members may recall the case of Sarah Payne's rape and murder by a known sex offender in 2000. The Department of Justice, Equality and Law Reform's equivalent in the UK has backed away from Megan's law and is introducing a pilot project whereby parents can ask whether sex offenders live on their children's school routes. There are troubling questions underpinning this approach, namely, introducing a law in a rushed fashion without considering the implications. The pilot is not working in the manner anticipated. In this context, no details such as names and addresses are provided.

These are some of the emerging ideas. Soft information is necessary and the proposal as advanced must proceed. However, we must consider what legislation will ensue. The legislation must be introduced having regard to other provisions in the Constitution and the European convention.

Chairman

I thank Dr. Shannon. Would Professor McAuley like to leave?

Professor Finbarr McAuley

No.

Chairman

He is most welcome to stay. Deputy Howlin raised this matter at our first meeting. I remember thinking how necessary and interesting it was. Having it explained so clearly has been worthwhile.

Deputy Alan Shatter

I will be brief and raise a few issues, but I offer my apologies because I must leave the meeting for approximately ten minutes. Deputy Enright will attend in my absence. If I miss the fully reply, I will be able to get it on the transcript.

The chapter on this matter in the presentation is important. I made two points in my opening comments to the committee, namely, the need for a constitutional amendment in this area and that it must not be abused or violate people's rights, well-being or livelihoods through unfair and untruthful allegations. Bearing this in mind, I wish to ask a number of questions. As someone who believes there should be access to this type of information by a broad range of groups, the constitutional amendment, as prepared, is too broad and may violate the European Convention on Human Rights. Its provisions allow for the collection and exchange of information relating to the endangerment of sexual exploitation or sexual abuse or risk of children or other persons of such a class or classes as may be prescribed by law. There is no delimitation within that constitutional provision on the breadth of the legislation that might ultimately be enacted.

One could argue that this must be examined within the overall constitutional framework and the right to privacy under Article 40.3 but then, if any legislation is challenged, we are leaving it to the Supreme Court to harmonise this provision with other provisions expressly contained in the Constitution or the previously unenumerated rights that have been enumerated in a variety of judgments. We are in difficult constitutional territory because what is proposed is extraordinarily broad. There is no constitutional delimitation and, until the Supreme Court pronounces, as Deputy Noonan says, on the different impact of constitutional rights on legislation enacted, the legislature will not be aware of how far it can go. There is a risk that this will be unconstitutional and will pose a real problem if held to be incompatible with another provision of the Constitution.

With regard to the legislation and not the constitutional article, the article could be in violation of the European Convention on Human Rights and legislation enacted, believed to fall within its remit, could be held to be unconstitutional based on other provisions of the Constitution. Has any consideration been given to a specific delimitation within the draft article on the purposes for which such information can be acquired or the purposes for which it can be used? Will the legal advisers to the committee be asked to consider this? This delimitation can be contrasted with a global permission to collect and exchange information and disseminate it to whatever class of persons the Oireachtas determines.

The second issue concerns situations I have come across over the years, as someone who fought to get the State to recognise the extent of child sexual abuse that was happening. It is now fully, or largely, recognised. Nevertheless, I represented people in court cases in which false allegations of sexual abuse were made. On some occasions false allegations have been made that resulted in Garda or health board investigations based on recommendations. The sort of soft information that could be used led to investigations into alleged abuse. This poses the problem that if an investigation is conducted by the HSE or the Garda Síochána, it could result in someone's name appearing and incorrect information being given. Could this point be expanded upon? The legislation must provide protection in this regard.

In family cases where marriages or relationships have broken down and there are disputes about children, there have been occasions where an allegation of sexual abuse made by a mother against a father has been established to be nothing but a weapon to stop the father having access to the child in circumstances where the allegation is spurious. I presume that, where allegations are made in family law proceedings that are held in camera, they are made only if the court made a decision determining that the allegations were valid and someone could find his or her name on register. As matters stand, family law cases are held in camera and, where decisions are made in child custody cases that someone is a risk to children, those decisions would not result in the name of the person being revealed or placed on a register. This must be dealt with, just as we need to ensure that where there is a false allegation made, someone’s name does not appear.

I must absent myself and return in a few minutes. Perhaps Dr. Shannon could take some other question and reply when I return in ten minutes. We should not underestimate the complexity of what is happening. We should be careful about this article. I am concerned in a constitutional referendum that there would be an attack on the proposals to amend the Constitution by persons with genuine concern, who have been victims of false allegations, that others in the same situation could find themselves pilloried and unfairly prevented from working in a variety of jobs if this was enacted. It may be necessary to tease out the wording of this amendment to a greater extent.

Chairman

I note that the Deputy will come back and that the room has become cooler. My train of thought was engaged by Deputy Shatter's contribution. I accept that we are between a rock and a hard place. We are very conscious of sexual abuse and the wrongs perpetuated throughout the decades.

Dr. Shannon referred to inter-agency reporting if there is an observation or suspicion but the very fact of agencies working together on a case will give rise to more people knowing about the allegation. How can one have a cordon sanitaire around allegations that turn out not to be true? The person would be damaged. Whether through inter-agency co-operation or the Internet, names will get around. The miasma of fault will be inculcated and I do not know how a person’s rights, to a good name and employment, will be restored.

Dr. Geoffrey Shannon

I will address that fundamental issue. I share the Chairman's concern. The theme running through my consideration of this issue is caution. As someone who spent in excess of 15 years campaigning on behalf of children, I do not wish to see a system introduced that is vulnerable to challenge. Within the context of my chapter, many will question if I wrote it because it is at odds with many of the issues I have advocated on over a decade. For the reasons outlined by the Chairman we must be very careful.

Regarding the European Convention on Human Rights, we introduced it at a sub-constitutional level. I was critical of this at the time, for the reasons outlined by Deputy Shatter. Either we were committed to the human rights principles enshrined in the convention or we were not. Many of the issues raised by Deputy Shatter are not of significant concern because we have introduced this international instrument at sub-consitutional level. They are of concern in respect of how they sit beside other provisions in the Constitution. The argument must be made in the context of other provisions in the Constitution rather than in the context of the European Convention on Human Rights. I prepared a lengthy submission for the committee on the other proposals, which I intend submitting in a personal capacity rather than in my capacity as rapporteur. I am also chairman of the Adoption Board but, as someone who as campaigned for a number of years who wishes to distance himself from other roles I hold, I hope this will be of assistance to the committee. I also sit as the Irish expert on the European Commission on European Family Law. I hope some of my international experience may be of assistance.

The Chairman's observation is valid but at the moment that is happening if one examines the approach at HSE level and in the Children First guidelines. These facilitate interagency co-operation so that when allegations of this nature arise one is caught between a rock and a hard place. This is the position with regard to soft information. The HSE is in an impossible position. There is a vulnerability with regard to soft information and, on the other hand, the HSE is mandated under section 3 of the Child Care Act to secure the welfare of the child in its functional area. This is because, on the one hand, soft information is vulnerable and, on the other hand, the HSE is mandated under section 3 of the Child Care Act to secure the welfare of a child in its functional area. This proposal is meritorious because it allows the HSE to put the issue of child protection to the fore while taking into account soft information.

It occurs to me that the issue of soft information only arises when something happens. Only horrendous circumstances such as those which led to the establishment of the Bichard inquiry and the deaths of Holly Wells and Jessica Chapman will focus our minds on the need for a referendum on soft information. This matter must be addressed with relative speed. However, at the same time it must be done in a proper fashion and we must consider competing constitutional issues. I hope this is of assistance.

Deputy Brendan Howlin

I thank Dr. Shannon for a helpful, detailed and thoughtful submission on all the issues covered. I have changed my mind on the issue of vetting since the publication of the original document mainly because of reading submissions I received from people wrongly accused containing details showing how people's lives can be destroyed. At the same time, perhaps the protection of children is so important that society must endure the consequences of people suffering in this way. It is extremely difficult to come to terms with this while forming legislation.

We can torture ourselves in getting the balance right on soft information. However, in truth most of us who worked on the previous committee were shocked at how hard information was dealt with in this jurisdiction. It came as a shock to the former Minister for Justice, Equality and Law Reform to learn during the deliberations of the Joint Committee on Child Protection that under the Sex Offenders Act 2001 the hard information on convictions was held in a general hand-written register which was extremely difficult to access and was not properly used in the protection of children. This was only 18 or 15 months ago.

Perhaps this committee can seek a report from the Minister on how the provisions of the 2001 Act with regard to hard information on the sexual offenders register is compiled and accessed. I would welcome a visit from the Garda vetting unit in this regard. The recommendations of the previous committee are on page 85 of its report. They must be revisited to ensure they have been taken on board. The recommendations with regard to soft information are on page 88 of the report and include the following which, perhaps, is a cop-out:

The Committee recommends further study of the means by which a comprehensive vetting system incorporating "soft information" might be established, the development of proposals to put in place the necessary statutory and institutional framework, and the provision of resources for their implementation.

The committee also recommended that consideration be given to establishing a statutory framework for the provision of a register of persons unsuitable for employment with children based on soft as well as hard information. These are major issues and I welcome Dr. Shannon's observations on them.

The recommendations in Dr. Shannon's report to us touch on all the issues to which we must have regard. In essence, I understand the consensus view he presents is that regardless of all of the difficulties, we must safeguard the legislation by having a constitutional amendment. I would welcome his observations on the questions posed by Deputy Shatter on whether the terms of the constitutional provision published by the Government in the Twenty-eighth Amendment of the Constitution Bill are appropriate or whether they are vulnerable in the context of other articles of the Constitution.

I assume Dr. Shannon's recommendations are that we should proceed with the constitutional amendment on whatever basis and that we must draft legislation with all the safeguards he indicated. In essence, are these his recommendations? Does he accept the contention that the protection of children is such a fundamental societal priority that if, to use the terrible American phrase, "collateral damage" occurs to individuals caught up in false accusations it is a price which must be paid?

Dr. Geoffrey Shannon

This is an accurate assessment of my recommendations. In the first instance, it is absolutely necessary that we have a constitutional amendment along the lines proposed. The wording is a matter for the committee and I urge the committee to——

Deputy Brendan Howlin

Has Dr. Shannon examined the wording?

Dr. Geoffrey Shannon

I have.

Deputy Brendan Howlin

What is Dr. Shannon's view of it?

Dr. Geoffrey Shannon

We need to reconsider the wording itself in the context of other articles in the Constitution. If I were asked for an assessment I would say it is appropriate and the particular wording gives sufficient latitude. The committee has a difficult job not only in the context of this proposal but also with regard to other proposals because of competing rights. We cannot shy away from this. The right to the autonomy of the family competes with the rights of the child. We can pretend it does not impact on the autonomy of the family but once this referendum is rolled out, this issue will arise.

As a society we must decide whether to put a premium on child protection. It is time we did so. We have had tribunal after tribunal in the context of this general issue and given the amount of money the State spends on tribunals it is opportune to send out a clear and unambiguous statement that we will protect children.

The question of whether this proposal is separate from the general proposal on children's rights has been discussed. The most fundamental right of a child is to be protected so a link does exist between child protection and the other proposals. Child protection is a key right contained in Article 19 of the convention on the rights of the child and we have a moral duty to frame our referendum around this. The committee may decide on a different wording. I share the view of Deputy Shatter on how this proposal or the other proposals will sit beside other provisions in the Constitution. The committee must give weighty consideration to how any emerging proposal will sit beside other constitutional provisions and how courts will balance various rights.

I am not in disagreement with anything stated by Deputy Howlin. To form my recommendations I examined legislation introduced in other jurisdictions and how it operates. I conducted a child impact assessment. The South African example has limitations as does the UK example. The legislation introduced in the UK with regard to soft information was introduced under pressure. It is flawed as a result of this and we can learn from this.

Deputy Brendan Howlin

They do not have a constitution.

Dr. Geoffrey Shannon

They do not have a constitution and it is extremely different. I tried to blend proposals from other jurisdictions within our constitutional framework.

Deputy Olwyn Enright

I am conscious of the comments made by Deputy Howlin as we have all received correspondence from people whose good names were damaged. I am also aware of several adults, particularly in my constituency and in County Kilkenny, whose lives have been ruined by a school principal who received six references and was moved to seven separate schools. The information held by each person who wrote a reference was never passed on to an agency. We must be cognisant of both aspects.

I have examined the system in Northern Ireland, which is slightly different to the system in the rest of the UK. It evolved over 20 years and we are trying to put in place in one go a system which has not had the same benefit in terms of time. The system there has clear penalties for people who make false allegations. People within the equivalent of the HSE or schools who abuse information are also penalised. We need to build that in.

Dr. Shannon spoke about the need to insulate the vetting system from challenge and in that context, is the wording of the proposed referendum too broad? In my examination of this issue, which started prior to the Huntley case, I analysed it from the perspective of vetting. The current Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, was involved in that process and a good system of vetting is now in place in the country, except perhaps in the area of soft information. We must decide what we want to achieve. Should the wording of either the referendum or subsequent legislation, specify that soft information relates only to the vetting process? In that way, we could protect children. I am not sure what could be otherwise proposed and that is one of the difficulties with the proposed wording. That would be the angle from which I would approach the issue.

Does Dr. Shannon know if there have been many appeals in the Northern Ireland jurisdiction due to people's good name being taken away?

Dr. Geoffrey Shannon

The Deputy has raised very interesting points. I am not here to defend the Government's proposed wording in respect of this proposal. I am here to offer a view as to how I feel we should proceed. My starting point is that we need a constitutional provision to insulate any legislation that might emanate in respect of soft information. The Deputy is correct in her analysis. The system, as it currently operates, is very efficient. The Garda central vetting unit, headed by Mr. Pat Burke, is working very effectively. The difficulty that arises, as the Deputy has pointed out, is in respect of soft information. That difficulty arises as a result of the High Court decision of Mr. Justice Barr. I am not blaming Mr. Justice Barr but the constitutional issues were not engaged, as such, in that decision. That has left us unclear as to how we can proceed.

There is considerable merit in the Deputy's recommendation as to how we should proceed. This committee must give very detailed consideration to what legislation might emerge from a constitutional amendment because, rest assured, the people will ask for that in the context of voting on this amendment. This is, perhaps, one of the most contentious provisions in the proposal. I sympathise with Deputy Howlin when he said that this seemed to be a "no-brainer" in that we all agree with respect to soft information but we must decide on the compromises we are willing to make to ensure this occurs. That is a very difficult and challenging issue and one that involves balancing rights.

Chairman

It jars with provisions in the Constitution as to personal rights and so forth.

Dr. Geoffrey Shannon

Exactly so.

Deputy Caoimhghín Ó Caoláin

With regard to the idea of soft information reportage, at what point in time or at what age would Dr. Shannon see a soft information flow beginning? Whatever the trigger or genesis of an abuser or predator, the problem often emanates from early experience, that is, the absence of good guidance and a sense of a moral code with a young person's preparation for life, be that in the family, the community, at school or elsewhere. In terms of protection, soft information presenting through, for example, early school situations, might allow for appropriate interventions in terms of counselling. It could have a compensatory function that might help to address difficulties presenting that are not being addressed in all of the other elements of the young person's life. It might also, in turn, help other children and protect them from what might be a developing situation.

Would Dr. Shannon deem mandatory reporting of soft information from primary level to be appropriate? We have seen instances of adults moving from school to school. However, we must also look at children moving from primary to secondary education where an already-identified problem has never been addressed. I know that would be open to all sorts of difficulties in terms of prejudices, intolerance, misunderstandings and misreading of situations. Is there currently such protection as mandatory reporting in terms of early-stage education where problems are presenting, that is, identifiable instances of concern? Does one allow the problems to continue or does one take the appropriate steps? Does Dr. Shannon, in terms of what he is presenting here, envisage a mechanism that will cater to that particular area, that is, a much earlier identification and intervention process?

Dr. Geoffrey Shannon

There is considerable merit in what the Deputy has said, particularly in the context of the issue of mandatory reporting. That issue was first discussed over a decade ago and flowing from that discussion were the Children First guidelines, which stop short of any formalised system of mandatory reporting. Again, it might be useful to reconsider that. The Deputy is correct with regard to early intervention or intervention in an attempt to identify difficulties coming down the tracks. Soft information would be of assistance on that front and from that perspective can be viewed as positive.

The arguments against mandatory reporting were well stated at the time. There are positives in it where children are concerned, but there are also negatives as far as the general citizen is concerned. As I said earlier, this is a balancing exercise and one where the committee will have to send out a clear message. The deliberations of this committee are particularly important in the context of indicating where the issue of childhood ranks in the general scheme of things. It is particularly important that the committee sends out an unambiguous message that the State is proactive in terms of securing the protection of children. In that sense, a real opportunity is presenting itself here.

Senator Alex White

To pick up on Dr. Shannon's last point, the notion of this committee and the Oireachtas sending out a signal is very important but it cannot be the whole story. If we were just to take action in order to send out a signal, we could be taking serious risks. I do not question the basic value of what Dr. Shannon is saying with regard to sending out a signal or doubt there is an earnest intention within the Oireachtas to address the issue in a serious way. However, the implications must also be addressed.

While I do not want to press Dr. Shannon on the wording of the proposed referendum, because as he rightly pointed out, he cannot be held accountable for it, I am curious as to how it relates to what he is proposing. Why do we need to amend the Constitution as proposed in the amendment before us? It is not like those with which we are familiar in other circumstances, for example, the next one which begins "No provision in this Constitution shall invalidate..." and so on. We have seen such wording before and have seen it in the area with which Professor McAuley dealt earlier, namely, the age of consent. Such amendments ensure that nothing in the Constitution invalidates any law that the Oireachtas may introduce. We have seen that in a number of other areas and this is what we are moving towards in the context of the post-CC situation. However, in this particular case, it is not that type of environment. What Dr. Shannon and others have argued is that we need a constitutional amendment in order to insulate, or protect from challenge, the legislation that might be introduced. I wonder if, in fact, that is true. I am simply asking that question. I am not saying it is not true but would like an explanation as to why it is necessary to amend the Constitution. If it is necessary to amend the Constitution, the only safe type of amendment is the other type of formula which would deal with how it interacts with privacy rights and all the other provisions in the Constitution. This reflects what Deputy Shatter said earlier.

Could the delegates direct us toward any body of empirical evidence on the risk of harm we are addressing? I do not question whether there is a risk of harm because that is almost self-evident and we are all aware of it. However, much of what we know about is anecdotal. Nobody wants to curtail any rights without a strong and compelling argument to do so. I do not say the Irish people could not be persuaded to do it but it should only be on the basis of empirical evidence of a real risk of harm rather than something abstract. I do not suggest that it is only abstract, but is there a body of evidence that one could look at? When Dr. Shannon dealt with Megan's law he said there had been changes in the English jurisdiction and seemed to suggest that this was a strong argument that it should also happen here. That is not sufficient for me. Due to the nature of the issue it is difficult to produce detailed, documented evidence.

The report helpfully outlines what the legislation should comprise and that is helpful because it gets us thinking about what the legislation should include. However, each bullet point almost immediately raises other questions, for example, the notion of information that has led to investigations into alleged abuses or crimes. I know about employment law where investigations happen frequently. If a person complains about a colleague or employee and the employer interviews the person or asks him or her whether it happened, that constitutes an investigation. There are all kinds of difficulties in drawing the line. I do not suggest this is not a vitally important area to address but I feel comfortable doing so only on the basis of real, compelling evidence that this is essential.

Dr. Geoffrey Shannon

That is perhaps the most fundamental point. I refer to the judgment of Mr. Justice Barr in the case of MQ v. Gleeson and others. Mr. Justice Barr made reference in particular to the fact that the then Eastern Health Board was not in a position to transmit what we now call soft information to the VEC. He did so on the basis that it had breached two essential elements, namely, constitutional justice and fair procedures. He was raising that as an issue.

I take responsibility for using the word "insulate" because that is how I see it in the context of moving forward. If we are to produce legislation, it must be insulated from the type of challenge that emerged in case of MQ v. Gleeson and others. We have a High Court judgment that casts serious doubt on the capacity of the State to legislate for soft information on persons who have access to children and vulnerable adults. That is the uncertainty on that judgment. In any submission by the HSE, the committee will hear that there is considerable uncertainty and the rule is that the HSE feels unsure unless there is an immediate threat to the life of the child, which is a high threshold.

As Deputy Howlin outlined, there are competing rights and Senator Alex White is correct in identifying the employment law area. In my consideration of this issue in the report, I have highlighted in strident terms the constitutional conflicts likely to arise. In the context of the legislation, I am saying these are the issues the committee might consider, but those issues must be incorporated in a manner harmonious with the Constitution. So it outlines a comprehensive list to indicate the possibilities and I have tended to blend some of the proposals in other jurisdictions into a composite proposal. Our understanding of soft information is broad, so we must decide whether we want to confine or temper it. That is a challenging matter with which this committee will have to deal.

Deputy O'Rourke asked for a further example in the context of the report and is correct in identifying the fact that this could have unforeseen consequences. I identified a case called Carter v. Netball Association in which this type of issue emerged. I flagged that for the committee to indicate what could happen and that it must be careful to ensure that what it asks for is what is intended. The proposal must be carefully framed. Once the committee talks to practitioners in this area, particularly the HSE, it will see a compelling need to have this proposal put in place on a constitutional footing. If we introduced legislation and it were challenged, we would face another CC case and this is my greatest concern.

Deputy Michael Woods

I agree with Dr. Shannon and I accept it is difficult. I was involved in establishing some of those interagency initiatives in the early 1980s. Diabolical things were happening to children at the time and the health boards were being blamed. It was clear that information was not being passed on. People had information but were afraid to provide it. The information should have been sufficient to take action, but it was not. There are such cases recorded from that time. It is important we speak with the relevant people in the HSE and see how they feel. We might square that circle, but it is not easy.

We must provide greater protection in the home because much can happen there, which we have seen and heard about over the years through anecdotal information or otherwise. One cannot stand back and let it happen. In some cases people will not stand back, but confront the people concerned. We must find a way to protect children in the case of marriage breakdown and in the community generally. The HSE deals with this kind of issue constantly. There is no point offering support when it is too late. We have great discussions and debates and we appreciate the danger of interfering with people's rights. I am strongly in favour of the family, its imprescriptible rights and the rights of children in that respect, and I would not like the State to interfere too much. However, many of the problems arise in the family area. The HSE faces this on the ground and we must give it greater support. Finding the right balance is an important deliberation on our part. We must not go too far but we must not leave children in danger. Too many children are in danger and we do not know half of it.

Chairman

The Deputy is correct.

Dr. Geoffrey Shannon

Deputy Woods has raised an important and fundamental point. It is important that we recognise and respect the imprescriptible rights of the family but we must balance that by ensuring an effective child protection system. That is crucial. Senator Alex White raised the fundamental issue of protections. I suggested there should be a right of appeal to an independent third party for people whose names are put on this register. That is how it is operated in some other jurisdictions and how they address some of the concerns articulated by members. That is a legislative, not a constitutional, matter.

Chairman

We remember the children wrongly taken from their parents. I forget the name of the case but I think it was in Aberdeen.

Senator Alex White

It happened on the Orkney Islands.

Deputy Brian Lenihan

I will assist Senator Alex White on the issue of the wording. There are two different areas of difficulty. One is the fact that Northern Ireland has a more advanced, employment-based system than the Republic. It is undesirable that there should be a gap of that nature between the child protection systems in Great Britain and Ireland. I would welcome a view from the lawyers for the committee as to whether legislation in this State could mirror that in Northern Ireland. It could be very valuable to know whether there would be a problem operating such a system without this kind of an amendment.

When I received the Ferns Report, one of the key recommendations was one which Deputy Woods has raised, namely, inter-agency co-operation, and that was another reason for this amendment. When my office sought to bring the different parties together they all had recourse to legal advice which told them they could not exchange information. For that reason I recommended to the Government that there be some positive assertion of the value of the exchange of information. Otherwise there appears to be preclusion because the various parties, whether the HSE, voluntary organisations or the Garda Síochána, come back with legal advice that they cannot impart certain sensitive information. That is a serious problem which is why the word "exchange" is specified. It is an issue we will have to look at and our own legal advisers may be able to help us in that regard.

Deputy Olwyn Enright

The complexity will depend on how broad we want to make the provision in the first place. There was a conference last year in Dundalk, at which I do not think the Minister spoke. Did a subsequent report deal with the issue? It might be useful for the legal advisers.

Chairman

It might be useful on another occasion. Could the Minister let the committee have a report on the outcomes from the Garda central vetting unit established under the 2001 Act? Dr. Shannon wanted to address Deputy Shatter.

Deputy Alan Shatter

I am sorry but I had to fulfil a prior commitment.

Dr. Geoffrey Shannon

I will return to one of the issues raised by the Minister. I made reference in my presentation to a key recommendation of the Ferns Report, namely, the establishment of interagency review groups to ensure a joint agency approach to concerns regarding child protection. Of course, the consequence of an amendment of this nature would be to permit that to occur. At a more informal level there continues to be a sharing of information, notwithstanding the recommendation of the Ferns Report. Putting that on a statutory basis has raised constitutional issues which will, perhaps, feed into the referendum.

I will refer to the issues raised by Deputy Shatter. The third issue he raised is very important in the context of allegations of abuse arising in cases of matrimonial disputes. We certainly need a more robust approach on the part of the courts in sanctioning parents in respect of false allegations. I am conscious of the fact that Deputy Shatter introduced a Private Members' Bill, which subsequently became the Protections for Persons Reporting Child Abuse Act 1998, which has been useful in addressing this issue to a certain extent. We need to be more proactive because, having reviewed the issue in the context of a book I have just published on the general matrimonial area, there is a real problem. The question is how we deal with it and the committee might consider that issue.

Deputy Shatter's views on the wording were the subject of considerable discussion in his absence.

Deputy Alan Shatter

I apologise for that. Having dropped the bomb I then departed. If the bomb has been defused that is fine. I will read the transcript of the meeting.

Dr. Geoffrey Shannon

I will reiterate one point in Deputy Shatter's presence. It concerns the approach of this State in respect of the European Convention on Human Rights, which was to introduce the convention at a sub-constitutional level. The Deputy raised what is perhaps the more important and weighty issue, namely, the question of how this provision would sit beside the other constitutional provisions. It is very important, not just in the context of this proposal but the other proposals, because we do not want there to be conflict between one provision in the Constitution and another. It would then fall to the Judiciary to resolve the conflict. This committee will have to give considerable attention to that issue.

Deputy Alan Shatter

I very much appreciate the fact that the European convention is being adopted on a sub-constitutional level. That does not prevent the State from finding itself in the European Court of Human Rights in Strasbourg for violating the provisions of the convention by virtue of something in our Constitution or in our ordinary legislation. It may prevent the courts in this country doing anything about it but we should have the objective of ensuring what we put in place does not result in the State being a defendant in the European Court of Human Rights, and a decision of that court forcing us to revisit the issue. It is better to get it right in that context as well.

Dr. Geoffrey Shannon

I addressed this earlier and made that very point. Any legislation or constitutional provision should be harmonious with an instrument this State has ratified and that must be the starting point. In the context of our domestic law it would not be an issue of great importance. A conflict between the various provisions within the Constitution would be of great importance.

Deputy Alan Shatter

Dr. Shannon refers to the conflict between different articles and what the hierarchy is supposed to be. If we leave it to the Judiciary to determine the hierarchy we may well find that what we put in place, thinking it would work, is unworkable.

Chairman

Delightful as these tête-à-têtes are we will have to draw the meeting to a conclusion. We have been sitting for three hours and it has been quite an arduous meeting.

Deputy Alan Shatter

Obviously in my absence the room became even cooler, which is a very good thing.

Chairman

Yes, the air grew very cool as soon as the Deputy departed. We promise a more temperate climate on the next occasion.

I thank Professor McAuley and Dr. Shannon for their presence and observations, and for the open way in which they dealt with the questions. They elucidated matters in layman's language. I also thank the Ministers for coming and for staying for a considerable length of time. The air also became cooler when the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, left the room. I thank members for their attention and I thank our legal teams. We will meet again next Wednesday. We have got our teeth into things now and we will keep at it.

The joint committee adjourned at 5.40 p.m. until 5 p.m. on Wednesday, 30 January 2008.