Before proceeding, I wish to raise a matter in public session. The Fine Gael Party is considerably concerned as to the way matters are developing. In February 2007, the Government published a Constitution referendum Bill with which we are all familiar. The programme for Government includes a commitment to hold a referendum to deal with the issues of children's rights and statutory rape.
Business of Joint Committee.
On a point of order, we all heard this matter discussed on local radio this morning. If the Fine Gael Party is serious about the issue, on which important points have been made, I ask that it be dealt with in private session.
The issue should not be dealt with in private session. This is our Parliament, not a secret society.
I thank Deputy Byrne for his intervention. However, I granted Deputy Shatter permission to speak.
When this committee was being formed, Deputy Howlin and I had serious and considered discussions with the then Minister of State with responsibility for children, Deputy Brendan Smith, and the former Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, about its terms of reference. It became clear as a consequence of those discussions and in the terms of reference that the Government was commencing the business of this committee on an assumption that we would have a referendum.
The job of the committee was twofold. First, it was to reach a consensus on the specific constitutional wording we believed desirable or necessary to achieve the objectives of giving an express recognition to children's rights and resolving problems in specific areas such as adoption, which were ably described in a memorandum published by the Government in February 2007.
The second issue, in the context of the issues of absolute and strict liability, was to address the problem highlighted by the child protection committee in 2006, which was the need to ensure that if a referendum is to take place to provide for absolute and strict liability, those voting would know in advance at least the outline of the legislation that would ultimately be enacted.
In February 2007 it was made clear by the then Taoiseach and then Minister of State with responsibility for children, Deputy Brian Lenihan, that the Government was committed to a constitutional amendment to provide for absolute and strict liability changes to the law. There is a provision in the constitutional draft amendment that we are looking at contained in the 2007 Bill that addresses the issue. The reason for the committee's existence is to see if we can reach a consensus on the proposed constitutional wording and whether we can reach a consensus on the substantive law that may be enacted to provide protection for children who have underage sexual relations.
During the summer I listened to and read comment from the Minister of State with responsibility for children and the Chairman. The Minister of State with responsibility for children's comments in recent times have been to assure the general public that generally speaking he does not think there is any need for a referendum. That in summation seems to be his position, which undermines the whole purpose of the committee. Some of the Chairman's comments have been a bit more nuanced and raised the suggestion that we do not need a referendum to provide protection for children in the area of sexual offences. Generally speaking, she has been a bit more nuanced on the general issue of children's rights, but she has been reported also as saying things similar to the Minister of State but it may be that she has been misreported in that regard.
One thing is absolutely clear from the legal advice received by the committee from its own counsel in July, namely, even if we are going to provide for strict liability there is a need for a constitutional referendum. If the Government has made a decision in principle that no referendum is to be held we should be told that. It should be frankly stated and the committee should then consider its position. If the Government is still committed to a referendum, the Minister of State who has the brief to protect children should not be spending his time trying to persuade the general public there is no need to provide a referendum that his own predecessor recognised was essential. We need clarity as to where the committee is going.
In response to some of the public criticism I have made — I am sorry if some members of Fianna Fáil resent the fact I have spoken in public — I had not done so until both the Minister of State and the Chairman had done so consistently, and misleadingly in my view. The Minister of State is reported in one of today's newspapers as saying he also wants to achieve consensus. I do not know whether he means consensus on the specific issues I have raised but he seemed to be saying today that he does not know whether there is going to be a referendum, which is an entirely different position to the one from which the committee started. Whether he knows that or not, the position should be clarified. If he wishes to achieve consensus, and that is the suggestion from what he said yesterday, at the very least on the issue of protecting under-age children from being sexually exploited, no consensus can be reached on anything until we have his own substantive proposals.
At this stage Fine Gael, the Labour Party and Sinn Féin have submitted proposals to the committee. I do not understand how we can reach a consensus on the legal changes required in circumstances where neither the Fianna Fáil Party nor the Government has yet submitted any substantive proposals to the committee. It was my understanding that for this meeting the committee would have Fianna Fáil's proposals. The committee clearly has not got them. I have no objection to the National Youth Council of Ireland making a submission to the committee today. It would be very valuable. However, some clarity on the time line of the Government's proposals must be introduced. There is no point in achieving consensus in circumstances where the other parties have brought forward substantive or initial proposals for discussion but Fianna Fáil, the Green Party, the Progressive Democrats and the Government as a body have not.
At a previous meeting I gave 24 September as the date on which Fianna Fáil would bring forward its paper. The next meeting will be on Wednesday 24 September, by which time the Fianna Fáil Party's committee will have its paper ready to submit to the committee. From that, we would ask our legal advisers if they could draw consensus from Deputy Shatter's, the Labour Party's and Sinn Féin's papers. That remains our objective. Does Deputy Howlin wish to comment further on this?
This is a peculiar debate. I was a member of this committee in the 29th Dáil which worked to solid, comprehensive and far-reaching conclusions. We were ably helped by our learned counsel at the time and are happy to have the same legal advice available to this committee.
I want to avoid any political tension on this matter. I accept the committee is a political body and there will inevitably be political tensions but the work is extremely important and is not simple. I have nuanced my views in the course of the representations received by the committee.
The Labour Party's submission, while preliminary, is the most comprehensive submission. It goes through the issues in greater detail than those of Fine Gael and Sinn Féin which are in letter form to the Chair.
Matters have evolved since we began our deliberations. Two separate constitutional amendments have been proposed. One is on restoring strict liability and consequential issues such as dealing with soft information. The other proposed amendment concerns broadening the protection of children in the Constitution. We have been treating them separately, although they are overlapping. The approach for strict liability we have suggested is to set out how far legally we can go without damaging the Constitution. Can we achieve the maximum protection without that? When the committee feels that is insufficient, we will then have consensus for a constitutional amendment on that issue.
The issue of soft information has changed. The view accepted by the previous committee was that it required constitutional amendment. The view in this committee is that the exchange of information can be provided for in legislative form. Maybe some members will demur from this position but it was the advice of the Attorney General to the Minister for Justice, Equality and Law Reform, as presented to the committee.
The form of the constitutional amendment, should we decide on that course, must be finalised. I am anxious that we get on with that element of our work. In addition, we must give separate consideration to the stand-alone issue of how best to enhance the protection of children. This is not a simple matter, as we have seen from the thoughtful series of presentations we have received on the issue of the rebalancing of rights. In particular, some of us were taken aback by the trawl of legal precedent which pointed to some of the legal issues that have already been rehearsed in the courts. It is a question of the balancing of rights between families and the point at which there can be a legitimate intervention.
We have made good progress thus far and I would prefer further progress to be made in-house. No statement was issued by the Labour Party on any of these matters during the summer. Any further media comment will serve as an impediment to us in reaching a consensus. I agree with Deputy Shatter that we are operating within a tight timeframe and that we must make several clear decisions on the structure of our business and how we plan to progress. I look forward to the presentation from the Government side.
I welcome this opportunity to address the committee after the summer. I acknowledge that there has been some commentary to the media, on the part of myself, the Chairman and Deputy Shatter, on the direction of the committee's work. The one issue on which we are all agreed is that we must complete our work and that the protection of children is at the core of all our thinking. This is the one point on which consensus can certainly be reached.
In terms of the process of the committee, a framework document was produced to examine the extent to which we could legislate on certain issues. This was requested by the members of the committee and there is no need to go into the detail of who or which political party requested it. It was simply the consensus of the committee that we seek to produce a distilled version of what could be achieved by way of legislation.
I was asked on several occasions by elements of the media about my view on the progress of the committee. I take this opportunity to reiterate my position. The Government set up this committee for the purpose of achieving consensus. In the course of its work, the extent to which legislation can achieve the goals we share is being explored and will continue to be explored as we come to the conclusion of our work. I also reiterate that if we find that this degree of protection cannot be achieved by way of legislation — if we encounter a constitutional ceiling above which we cannot achieve the required degree of protection — then we will certainly proceed to seek consensus on the wording of a referendum. That has been the position from day one.
I accept that I may be open to some criticism. Perhaps I have spoken to too many people about this issue. However, I have not at any time distorted the procedure by which the committee has been doing its business. I have not sought to undermine the work of the committee. I have developed my views as we have proceeded. The submissions made to the committee, the arguments arising out of those submissions and the legal advice we received have been extremely instructive in facilitating the development of my view. Far from wanting to get this done quickly, I want to get it done right. The legislation in question dates back to 1935 and it is our objective to amend and strengthen it and to produce something that will stand the test of time.
While we all have political considerations to bear in mind, it has always been my view that we should strive to achieve as close to consensus as possible and that we be open, fair and honest in how we deal with this issue. That remains the Government position and we look forward to receiving the document setting out the committee's conclusions.
I thank the Minister of State for his contribution which I hope has cleared up any misconception that has arisen. I and the other members of the Fianna Fáil grouping look forward to the production of our paper on 24 September. This date was put into the public arena at a previous committee meeting. There was no mystery about that and we were not asked why we would not produce it. We made it known when it would be produced.
On a procedural point relating to that submission, the Chairman says it is a Fianna Fáil group position, but is it a Government position? Will it be created by members of the committee who are members of Government parties? Is it to be perceived as a Government-endorsed position?
It is the position of the Fianna Fáil members of this committee. That is what I said and I hope that is what it will be.
In that regard——
Excuse me, but I must inform Deputy Shatter that we have sent for the witnesses.
We are still in open session. When we discussed this matter previously we were variously told that there would or would not be a Government presentation. I clearly remember that when the Minister of State and Deputy Ó Fearghaíl spoke separately on this subject it was indicated that there would be a Government paper and a Fianna Fáil paper. I am not saying this to be difficult but, as the Minister of State says, this committee is trying to reach consensus. There are two other parties in Government, the Green Party and the Progressive Democrats. If we are to reach consensus on the issue of statutory rape, and there is need for absolute liability in this area, we cannot address all of the problems without providing for absolute liability relating to children below a specified age. It was suggested that the Attorney General was feeding into the process and I asked the committee to get his advice. The Minister of State said this would not be possible because that would be advice to the Government.
The Government made a decision to hold a referendum. If the Fianna Fáil group in this committee is to produce a paper that does not reflect the Government's position and is not based on advice from the Attorney General I do not see what impact it will have. I have no wish to interfere in Fianna Fáil business but the Government is seeking to reach consensus with the parties that are not in government. I welcome the paper from the Fianna Fáil members of this committee, and they are entitled to present one, but I do not understand why we will not see a paper representing the Government's view.
I am keen to move on to hear the submission of the invited witnesses but I made it quite clear that the Fianna Fáil members of this committee would submit a paper on 24 September and that is what we intend to do.
I rule that we listen to the submission.
This means the Minister of State will not present a paper on behalf of the Government.
I do not know. I am speaking of the Fianna Fáil members of this committee.
We are entitled to ask this question.
The Deputy is entitled to ask this question.
All along it has been understood that we would see a paper representing the Government's position. Is the Chairman saying that no such paper will be furnished to this committee?
That is the Deputy's interpretation of what I have said.
What is the position?
I have said on three occasions that the Fianna Fáil members of this committee will present a paper on 24 September.
When is it intended that we will get the Government's paper?
I cannot answer for the Government.
Perhaps the Minister of State can because he represents the Government on the committee.
The Government's position has not changed. Fianna Fáil is the largest party in Government and the position it takes will be very instructive. The purpose of this committee is to have all of the political parties feed into consensus so the people on the committee advise the Government. That is the position and remains the position.
The committee is representative of the political parties, not the individuals that sit on it.
Try to imagine the separation of powers as this committee is a function of Dáil Éireann, not the Government. Accordingly Dáil Éireann, through this committee advises the Government on its position. We will base our position on that, on the submissions and on the Attorney General's advice that we have diligently sought. We respect the process of this committee and we will not anticipate the outcome or undermine the process.
That is absolutely outrageous.
What is the timeframe for the Government's response and the decision on holding a referendum?
There is no timeframe. I understand the committee has until the end of November.
The end of November. I deem this conversation to be concluded.
The nub of this conversation is that the Government, despite a promise to the committee that it would do so in the form of Ministers making that presentation to the committee, will not furnish to the committee its view as to what legislative change should be made.
There will be a Fianna Fáil statement to this committee and it can be critiqued accordingly. That is the position.
Can I say something, please? Senator Corrigan, while I would very much like to hear your voice, I hope I can hear it later.