I welcome the Minister for Justice, Deputy Owen, to the House. I remind Senators that they may only speak once on Report Stage, except the proposer of an amendment who may reply to a discussion on it. Government amendments Nos. 1, 2, 3, 4, 5 and 7 form a composite proposal and may be discussed together.
Criminal Law (Incest Proceedings) (No. 2) Bill, 1995: Report and Final Stages.
Government amendment No. 1:
In page 3, between lines 11 and 12, to insert the following:
2. (1) In any proceedings for an offence under the Act of 1908, the judge or the court, as the case may be, shall exclude from the court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the press and such other persons (if any) as the judge or the court, as the case may be, may, in his, her or its discretion, permit to remain.
(2) In any proceedings to which subsection (1) of this section applies the verdict or decision and the sentence (if any) shall be announced in public.".
I am glad to be back in the Seanad on Report Stage of the Criminal Law (Incest Proceedings)(No. 2) Bill, 1995. I will discuss amendments Nos. 1, 2, 3, 4, 5, and 7 together. Senators will recall that on Committee Stage I undertook to bring forward a package of amendments on Report Stage which would encapsulate the thinking behind the amendments tabled by Senator Mulcahy and would meet the concerns which prompted Senator Honan to table amendments for the purposes of applying certain provisions of the Rape Acts to incest offences.
I explained that I had no difficulty in principle with the amendments proposed by the Senators and I indicated that I would go to the parliamentary draftsman to prepare appropriate amendments for Report Stage which would try to encompass the requirements put forward on Committee Stage. I am glad to report that that process has been completed and I am able to fulfil the commitments I gave on Committee Stage to introduce additional amendments.
The main purpose of these amendments is to replace sections 2 and 3 of the original Bill as published with more extensive provisions with the overall result that the type of arrangements which currently apply for the reporting of rape trials would, in effect, also operate in criminal incest proceedings.
Amendment No. 1 inserts a new section 2 into the Bill which provides that where a person is being tried under the Punishment of Incest Act, 1908, the persons who can be in court will be court officers, persons directly concerned in the proceedings, bona fide representatives of the press and such other persons as the court shall permit. One of the effects of this proposed section, which is modelled on section 6 of the Criminal Law (Rape) Act, 1981, as amended by the Criminal Law (Rape)(Amendment) Act, 1990, is that the press will be able to attend and report on incest trials subject to certain restrictions provided for in amendment No. 3, which I will discuss shortly.
In addition, the section I propose to include in the Bill allows the court to permit a relative or friend to accompany an incest victim to court. We are all aware of the difficult situation victims face in court and I have no doubt there is a need to ensure that a person who has been a victim of incest, in particular a child, is entitled to the support of a person they can trust when they are required to give evidence in court. A number of Senators spoke about this provision on Second and Committee Stages. I stress that the type of arrangements I propose in that regard for incest cases has operated successfully under the Rape Acts. Essentially, I am mirroring that proposal which will allow designated people, with the court's permission, to accompany a person giving evidence in an incest case.
The amendment also reproduces the requirement in the current section 2 of the Bill that any verdict, decision or sentence in a case arising under the 1908 Act must be announced in public. Not only will bona fide members of the press be allowed to be in court to report but, as I pointed out to Senator Mulcahy on Committee Stage, I have ensured that the verdict and sentence, if any, will be announced in public.
Such a provision will guarantee that a person or a body with a specific interest in the welfare of an incest victim — for example — a health board — can ascertain the outcome of an incest prosecution. It is important that the elements relating to the bona fide press and a public announcement are included in the Bill. Senator Mulcahy did not include that in his amendment. I am anxious that section 2 of the original Bill is left in the Bill. It will ensure that if a health board or caring agency does not have the time to be in court for the entire case, they could arrange for someone to be present for the public announcement of the verdict and sentence.
Amendment No. 2 is a technical one — it simply repeals the existing section 2, which will be replaced by the new section proposed in amendment No. 1. I have modified the original section 2 of the Bill so it is no longer necessary to leave it in the Bill. Once amendment No. 1 is agreed to by the Seanad, the provisions of section 2 will be encompassed in the new section.
The purpose of amendment No. 3 is to strengthen the Bill by replacing the direction procedure provided for in the existing section 2 (2) with a more comprehensive method of ensuring that the names and other details of incest victims are not made public. The amendment achieves that purpose by providing for a new section 3 which contains a prohibition under which once a person is charged with an incest offence, no matter likely to lead the public to identify that person or the victim shall be published in a written publication available to the public or be broadcast.
Senators will be aware that a similar amendment was proposed by Senator Mulcahy which mirrored the provision in the Rape Acts. I said I had a problem with his amendment because of the word "complainant" which would not be appropriate in an incest case. That problem has been overcome with the assistance of the parliamentary draftsman who has come up with a wording which refers to an incest victim as "the person in relation to whom the offence is alleged to have been committed". In addition, the opportunity has been taken to define the terms "broadcast" and "written publication" in the same way as they have been defined in the Rape Acts. This amendment makes it an offence for anyone to make public the identity of the person charged with incest and the name of the victim. I was not happy that the section in the Bill was as watertight as I wanted it to be in relation to the identification of the victim and the accused person.
The additional section proposed in the amendment makes it an offence to disclose information which could identify a person as the perpetrator of an incest offence or the victim of such an offence. In view of the close family relationship which will exist between the parties in incest cases, the anonymity of the accused will not be lifted at any stage. Senators must understand that by making known the name of the member of the family, the victim is automatically identified because incest involves a member of a family. To that extent this represents a departure from the provisions of the Rape Acts which permit the name of a convicted rapist to be published after a conviction has been obtained. Senators will appreciate that there are compelling reasons for adopting a different approach in relation to proceedings taken under the Punishment of Incest Act, 1908, and that every effort must be made to protect the identity of the victim and the family involved. In this section I am departing from the conditions in the Rape Acts for good and safe reasons in order to protect the identity of the victim and the family involved.
The prohibition on the publication of broadcasting material caught by the proposed new section 3 extends not only to a journalist but also to a proprietor and editor of a newspaper. This is also the arrangement which operates under the equivalent provisions in the Rape Acts. Some people might argue that it would be sufficient for the person who discloses the relevant information to be charged with an offence. However, it has become the practice that in the case of such offences proprietors and editors should be held responsible for the actions of others who operate under their authority. Otherwise, a person who had adopted a policy that sensationalist matters should be published might escape liability by claiming they had not published the material which could lead to the identification of a rape or incest victim. This is necessary in practice to ensure that an editor or publisher of a newspaper or publication, who could claim their journalists have freedom and they cannot stop them, is also held responsible.
Amendment No. 4 makes provisions for the penalties which will apply in respect of an offence under the proposed new section 3. The penalties provided for are in line with similar provisions in the Rape Acts, except in the case of fines where account has been taken of the changes in the value of money.
A further section, section 4, would be included in the Bill. That section is in standard form, but it also provides for a defence by a person charged under it that he or she was not aware, did not suspect, or had no reason to suspect that the matter published or broadcast could not be disclosed. Such a defence is also permitted under the Rape Acts. The reason for its inclusion is to prevent injustice — for example, where disclosure is made inadvertently. It does not, however, offer an easy means of escape from liability for a person who is prosecuted for a disclosure because, in order to come within the scope of that defence, the person must prove in court that under the particular circumstances he or she is entitled to be relieved of criminal responsibility. It will not be sufficient to say that he or she did not know they were not entitled to disclose the material in question. The court must be satisfied on the basis of proper evidence provided by the accused that that was the case.
I tried to think of an example where someone might be able to use this in their defence by saying that they could not have been aware of making something public which could help to identify a person. It is difficult to find examples because the section in the Rape Acts has not been used by anyone prosecuted for identifying someone in court whom they are not supposed to identify. The best example I could get was a case where a judge or someone might say it was appalling that a particular crime was committed in a small town in the west when a carnival or festival was taking place. It might not be clear to an editor or journalist that by saying this took place during a carnival in the west they may be identifying a person because there may have been only one festival or carnival taking place at that time. Someone may be able to draw a conclusion that it happened in a particular town or location. One could argue there was no way they could have known that would help to identify a victim.
I trawled my mind to find an occasion where someone could validly say that information was given without the slightest idea that it would cause a victim's identity to become known. To the best of my knowledge, no examples have been quoted in court. This provision is included to protect the victim and someone who, unwittingly, might be prosecuted for identifying a victim.
Amendment No. 5 repeals section 3 of the Bill which is concerned with the situation where a person is charged in the same proceedings with incest and rape offences. The effect of the section is that the arrangements which apply in respect of the reporting of rape trials would also apply in joint incest and rape cases, even where the rape charge might not be proceeded with. As I have indicated, the amendments I am proposing will achieve the result that the relevant procedures laid down by the Rape Acts will also apply in relation to incest prosecutions. In the circumstances, there will be no role for section 3 if those amendments are adopted. Accordingly, I am proposing its deletion.
I want Senators to be clear about what I am doing. In the original Bill I indicated that sections of the Rape Acts would come into play where, as in the case referred to by Mr. Justice Carney, there were two original charges of incest and rape. The rape charge was subsequently dropped and the trial was then conducted under the 1908 Act, as opposed to the Criminal Law (Rape) Act, 1981, and the Criminal Law (Rape) (Amendment) Act, 1990. That meant all the conditions applying to a trial of an incest case under the 1908 Act were being used.
I am now proposing to amend the Act to take on board a number of the existing conditions in the Criminal Law (Rape) (Amendment) Act, 1990. There is no need for that section now because, even if a charge of rape and incest is brought, the rape charge is dropped and the case reverts back to the 1908 Act. That Act will now be strengthened if the Senators adopt these amendments to mirror the Rape Acts. It is superfluous to the purpose of the original Bill. I hope Senators agree to adopt these amendments.
Amendment No. 7 proposes to repeal section 5 of the Punishment of Incest Act, 1908. This section states in the original 1908 Act that all proceedings under the Act shall be held in camera. Senators will appreciate that in order to give effect to the amendments I am proposing, it will be necessary to repeal section 5 of the 1908 Act. That is provided for in amendment No. 7, which is a technical amendment. Once Senators agree to adopt the other amendments, one could not leave section 5 of the 1908 Act as it stands. Mr. Justice Carney concentrated on that section in his judgments because he was defining what the term in camera meant. In amending the Act, I hope Senators will accept that is no longer relevant.
The amendments I have put forward for consideration by this House involve substantial changes to the Bill. We should strive to achieve the best provisions in this Bill. For that reason I am happy to have the time to review the discussions we had on Second and Committee Stages and to be able to come back with an improved Bill and one which I hope will meet with the approval of the House. I have taken on board the views that have been expressed during the debates on all sides, both by Senators who tabled amendments and those who did not. I believe that the amendments I am moving reflect and meet all the relevant concerns insofar as it is possible to do so in this Bill.
I hope that Senators, in adopting my amendments, will see that their work and my own, as well as that of the parliamentary draftsman and my departmental staff, has greatly strengthened this Bill. It is a good piece of legislation which will now be brought before the Dáil and in turn will be signed into law.
Acting Chairman
I would like to remind Members that a Senator may speak only once on Report Stage, with the exception of the proposer of an amendment who may reply to discussion on the amendment. I make that point for your own benefit so that you will know the guidelines and the rules.
I am obliged for your guidance, Sir. This is a case where maximum flexibility should be allowed, especially considering the manner in which we proceeded on Committee Stage when the Minister graciously accepted certain of our amendments both in spirit and in principle. However, the Minister said that she would like to come back to us with her own particular wording covering those amendments. It was all very amicable and agreed, but we now find on Report Stage that we have a wording before us that we did not have great notice of, except in the amendments which we were given some days ago. However, I am happy to admit that the Minister's wording is one with which the Fianna Fáil Party can largely agree.
I will not repeat any of the arguments that were advanced on Committee Stage, they are well known. This Bill arises out of the decision of Mr. Justice Carney and another decision which gave rise to concern that the caring agencies would not be able to report incest cases nor alert the authorities to the possibility that people might reoffend. The Minister quickly and commendably came to this House with a Bill which we have altered, and there has been almost total bipartisan agreement for all the changes that have been made.
I wish to make some specific points on the Minister's amendments. I notice that in relation to amendment No. 1 she has not taken up my suggestion that we would include the charges. Amendment No. 1, subsection (2) states that "the verdict or decision and the sentence (if any) shall be announced in public." But there is a case to be made for including the charges, because obviously one cannot put the verdict and sentence properly in context if one is not fully apprised of the charges. One can, of course, publish the charges without indicating the identity of the person concerned. One can say that Mr. A.B. is charged with, etc., or that Ms A.C. is charged with, etc. Unless there is a technical or legal problem with including the word "charges", I do not see why it should be excluded. Perhaps the Minister could consider that, if she has an opportunity to speak to her draftspeople.
Amendment No. 2 follows from what was agreed on Committee Stage.
In relation to amendment No. 3, I want to thank the parliamentary drafts-people — if that is the correct phrase these days — for the wording "a person in relation to whom the offence is alleged to have been committed...". That is a formula used in other pieces of legislation and therefore it makes sense. Another suggestion would have been "the alleged victim" because a victim is not a complainant and is gender neutral. However, if for some technical reason the drafting experts feel that their wording is better, then, although I might have the capacity to argue with them, I do not feel that it would serve any purpose to do so.
Also, in relation to amendment No. 3, a point arises that I may have missed on Committee Stage. Subsection (2) contains the wording taken from the Rape Act. On Committee Stage, the Fianna Fáil Party made the point that the wording from the Rape Act in relation to this should be transposed into the Incest Act.
I would ask the Minister to give some last minute reflection to the fact that we do not include the writer of the article. Subsection (2) (a) states
If any matter is published or broadcast in contravention of subsection (1) of this section, the following persons shall be guilty of an offence namely:
(a) in the case of matter published in a newspaper or periodical publication, the proprietor, the editor and the publisher thereof,
Nobody is as aware of the danger of identifying the person about whom they have written as the writer of the piece. The Minister will also be aware that in defamation proceedings one can sue the writer, editor, publisher, printer, distributor and, in theory, the boy or girl who is disseminating the newspaper on a street corner.
As I understand it, everybody who touches on a defamation can be responsible for that defamation. I am not saying that it is an oversight on the Minister's part — perhaps it is my own oversight — but it seems odd that the actual writer of the material is not included, though there may be a good reason for this. However, I would advance a general proposition in two stages. First, that the writer of an article covering an incest case is in the best position to know if that material is going to lead members of the public to identify the victim. Second, if the writer knowingly breaches the need for confidentiality then nobody should be as punished as the writer. I do not think that anybody would disagree with that.
As we know, the vast majority of journalists are extremely responsible, but we also have to guard against a tiny minority of people who might not be so responsible. I do not want to repeat my earlier comments about the need for guidelines to be drawn up on responsible reporting of incest and other sexual offences cases. However, there is a very fine line between accurate reporting of such cases and the prurient reporting of them.
We are not dealing with censorship here, but the Minister said on Committee Stage that she would consider guidelines. Studies are being undertaken into this and it will be some time before progress can be made. But if anybody oversteps the mark in identifying a victim and if a writer knowingly breaches confidentiality, there is a case to be made for including the writer or, if it is a television programme, the presenter or whoever is at the coal face making the report.
Staying with amendment No. 3, subsection (4) deals with the definitions of "broadcast" and "written publication". These definitions may be taken from similar Acts of the Oireachtas where broadcasting is involved. With the advance of technology there are ways of communicating information other than by writing and broadcasting. For example, E-mail would be one such case. Is the Minister happy that the transmission by electronic or satellite means is covered by the wording of this Bill?
Subsection (2) (c) of amendment No. 3 refers to "... in the case of matter broadcast, any person who transmits or provides the programme in which the broadcast is made and any person who performs functions in relation to the programme ...". As I understand it, broadcasting is normally by means of wireless telegraphy. Will the Minister reassure the House that she is happy this will cover all possible forms of modern communications which are now commonly in use? Indeed, I will be giving the Minister my E-mail number shortly and we can communicate by that means.
It will not be of any use to me.
Acting Chairman
Is the Senator sure he does not want to put it on the record of the House?
In subsection (3) of amendment No. 4, is the Minister satisfied that the issue of the onus of proof lies on the person seeking to use the ignorance clause as a defence? I understand this is a standard legal phraseology. In other Acts it can be stated in a more trenchant way.
A further question of reasonableness arises, and the Minister touched on this. Is recklessness covered by this? Does this cover the case where an editor or proprietor of a newspaper or a radio or television station is uncaring and reckless as to the contents of any report in this regard? A reckless person is not aware and neither suspects nor has reason to suspect. If somebody is reckless as to whether the provisions of this Bill were going to be breached there should be a sanction. By "reckless" I mean gross negligence or "uncaringness", but in legal parlance it is a total lack of care in relation to what transpires.
With regard to amendment No. 5, the Minister is correct that this is no longer necessary and the reasons were explained. It is obvious that if there is a joint prosecution under the Rape Acts and the incest legislation, no matter which prosecution is dropped the remaining one will be covered by the confidentiality and anonymity provisions.
Amendment No. 6 was a matter of total agreement.
Acting Chairman
Amendment No. 6 will be dealt with separately. We are taking amendments Nos. 1 to 5 and 7 together.
Section 5 of the 1908 Act, which dealt with the in camera provisions, is repealed in amendment No. 7.
My colleagues and I in Fianna Fáil gave much thought to the issue of weighing up the pros and cons of reporting such cases. On Committee Stage I mentioned a speech made by the Director of Public Prosecutions on this matter. The correct approach is that it is important for the caring agencies and for society that such cases are reported. It is also essential they are reported in a responsible mature manner. If we find there is a prurient concentration on the detail of these cases, such that the public is disquieted or disgusted, and if there is irresponsible reporting of these cases by dwelling on these aspects, there will be a need for guidelines for the reporting of these cases.
Many mistakes were made in the past. The DPP has said there is a possibility of these crimes being committed by people who are imitating the details of other crimes. He has a long experience of these cases. In so far as we are trying to remedy wrong we are doing good work, and I hope that those whom we are allowing access to these cases for the good of society and victims will also act in a mature responsible way. If they do not, it will be incumbent on the Minister to act quickly so that there will not be a lopsided concentration on some of the more disgusting aspects.
I welcome the Minister's amendments as they have greatly improved the Bill. A great deal of time and thought has gone into them, and a great deal of generosity in accepting the amendments put forward on Committee Stage. I hope it will encourage the Minister to introduce other Bills here.
Amendment No. 1 is particularly important in allowing the judge to permit someone to stay in court, as was described in the debates on the rape legislation, as a friend of the person against whom the offence is alleged to have been committed. This is even more important in incest cases than in rape cases. In rape cases there are often a lot of other people from the alleged victim's family to support them. However, in an incest case one can see how easily the child can become isolated within the family because their reporting what has happened to them may be bringing down the structure of the family.
This provision comes at a good time with the recent introduction by the Minister of State, Deputy Currie, of initiatives between members of the health boards and the Garda. There will be a need to consider those applications when one looks at section 1 in particular. A second social worker may be needed as the friend of the child in court. The first social worker may be considered to be too concerned with the persons connected with the proceedings as they would have to be involved in the investigation of the case. I am sure the health boards will make available some other suitable person as a friend of the child in these cases.
The guidelines I mentioned were brought in partly by the Minister's Department and I welcome them. It does not go as far as mandatory reporting but it goes a long way towards it. I am sure this Minister, and the other Ministers involved, will bear in mind the urgings of groups of social workers that more staff will be needed. I am sure she has noticed an editorial in The Irish Times which pointed out how very difficult these cases are for social workers. There is a certain amount of burn-out among this staff and senior social staff must be put in place. I am sure the Bill will be very important in providing for a humane approach towards these cases rather than, as might have happened initially, leaving children in very isolated situations.
The in camera part of the 1908 legislation does not need to apply. I would be grateful if the Minister would look at what we mean by “in camera”; maybe she is doing this at the moment. It would be extraordinarily important if this sort of legislation applied to family law cases. These are cases where the same amount of anonymity is required but the Minister has dealt with this in the amendment very satisfactorily.
In cases such as incest and family law cases there is little opportunity for members of the public to know about what they can complain, which is another point we must consider. Nobody want prurient details in the papers but it is important that people know that if crimes have been committed against them in the family, this can be complained about and that there is justice.
Perhaps the courts could allow in young impecunious reporters to write law reports showing delay in dealing with family law cases — which I am sure the Minister regrets as much as anybody else — from one to four years. It is children who are at the centre of all these cases. I urge the Minister to bring forward similar legislation, or even guidelines, for judges on the in camera reporting of law cases. A friend for the family, or the divided family in these cases, could be very important.
Amendment No. 5 proposes the deletion of lines 23 to 33. I thought there could be some confusion and that there could be two trials, one for incest and one for rape. I am very glad this has been clarified. I warmly welcome the amendments introduced by the Minister and urge her to apply this philosophy to the legislation on family law which I hope she will introduce.
I welcome the Minister and am pleased to see her in this House with such a range of amendments which take account of the concerns of this side of the House. I pay tribute to the generosity of the Minister in acknowledging our concerns.
It is almost five weeks since the Second Stage of the Bill was taken. At that time I said that a more comprehensive Bill could be brought in if a little more time was given. All the consideration the Minister has given to the issues we raised, and which she herself accepted were of great concern, has enabled a much better Bill to be brought before the House today, which will be debated by the other House and, we hope, passed.
Amendments Nos. 1 and 2 effectively delete the original section 2 and substitute a new section. They provide for the exclusion of the public from a hearing, with the exception of bona fide representatives of the press and, as the Minister and other Senators have mentioned, a friend who will support the child involved in the case. This is very welcome. The amendments also provide for the giving of the verdict in public. The principle of both these changes is what I sought in my Bill. Although the Minister is bringing forward these changes in a different way, she is achieving the results I wanted. I am delighted she is doing this and I thank her.
It is accepted by all that allowing bona fide representatives of the press to attend incest cases, as is the case in rape trials, was an acceptance of the concern of Members of the Oireachtas that the public should be made aware, through sensitive and restrained reporting, of various crimes and offences which are perpetrated against women and children. We should create a climate of public awareness which is supportive of women and children who are victims in these cases and which would act as an encouragement for other women and children to come forward. The fact that victims of these crimes would not feel that they were alone and would know there are other people against whom these crimes have been committed, would encourage them to come forward, as we all want. Amendment No. 1 provides for this.
Amendment No. 3 provides for the anonymity of persons charged and the persons against whom the offences were committed. All of us wanted details of the cases to be known so that public opinion would be supportive of the victim. This was sacrosanct to our concerns and I very much welcome amendment No. 3.
Amendment No. 4 provides for penalties on people who do not safeguard anonymity, which is most important. The Minister is also proposing to repeal section 5 of the 1908 Act, which was one of the provisions I sought.
We were all of one mind on what we wanted to achieve but the difficulty was the speed with which this could be achieved and the effectiveness of what we were doing. We were willing to acknowledge that the Minister accepted the principles of what we wanted and in bringing forward these amendments, she has done exactly what we wished. She has shown courage in doing that. This has been a very good day for democracy. By introducing legislation in either House, listening to what all the Members of that House have to say and using our combined wisdom and efforts, we can ensure that better legislation is enacted.
However, I have one concern. The Minister said that one of the provisions in my Bill was outside the scope of this Bill. This related to sections 1 and 2 of the Criminal Law (Amendment) Act, 1935, which deal with defilement of girls under 15 years of age. We are not dealing with this here but I am a concerned that anonymity is not guaranteed in these cases. Many child abuse prosecutions are brought under these sections. This is the offence with which the man in the X case was charged.
The Minister gave a commitment that she would review this and bring forward legislation when it was concluded. Yesterday we had a press release detailing all the legislation that has been promised and the Leader gave details of the legislation which will be introduced this session. This is a very important issue about which I know the Minister is concerned. The Minister of State, Deputy Currie, also spoke about this on Second Stage. I am very concerned that this issue may be lost when the Bill is passed. I would like the Minister to give some indication when she proposes to deal with the loophole relating to sections 1 and 2 of the 1935 Act.
I congratulate the Minister on her open approach to the Committee Stage of the Bill and her response on Report Stage. It is important that we, as Members of the Oireachtas, have a real role to play when legislation is going through the House. Too often, even though we make good points, some Ministers feel it is a comment on them if this or the other House has a direct input and suggests that Ministers did not get it right at the start. That would be totally negative and for that reason we congratulate the Minister on her attitude.
We now have a much improved Bill. All sides took part in a detailed Committee Stage debate. We agreed in principle with a great deal of what was said on the other side, even though we had not put down the amendments and the Minister has taken this on board. If that approach were to be adopted by Governments there would be a much better attitude and we, as Senators, would play a stronger role as legislators. The same would apply to the other House. That is what we are supposed to do: to bring our sometimes inexpert commonsense to bear on the complex area of drafting legislation. I commend the Minister for her approach.
Amendment No. 1 improves the Bill dramatically. It allows incest victims to have a support person with them in court. This is an important provision. It is important that an incest victim — I accept Senator Henry's point that perhaps "victim" is the wrong word but for the purposes of this discussion I will continue to use it — should have in court the support of somebody who is close to them, who understands them, who will listen to them and who has empathy with them. It must be an isolated and lonely experience to have to go to court for what must be the biggest crisis any family could confront, an incest prosecution in court. The victim is in a vulnerable position and needs every support possible. This amendment caters for that situation.
It further allows the caring professions, such as health board personnel and others who are assisting or advising the incest victim, to be present during the proceedings. It gives wide discretion to the court to have such people present throughout the full hearing and not just for the delivery of the verdict. Often incest victims have built up a relationship with the caring personnel from health boards and so forth and they lean on them for support. During the interim a personal relationship develops on the part of the victim as a result of their vulnerability, while on the health board side a professional relationship develops in the course of advising the victim. In many cases the health board person is of key importance. Every case is unique, but it is important that those giving the professional support the victim received from the time of reporting the case can be present in court and that the courts have discretion to allow that person or persons to be in court when the case is heard and to allow them to support the victim.
It is also important that the verdict or decision is announced in public. Publicising court cases in either the local or national press is the subject of frequent debate. It is important that our courts are open and transparent and that the public is admitted. That lends the court system a credibility it would not have if courts only met in private.
It is equally important, as amendment No. 3 provides, that the identity of the victim is not known and that there is no danger of it being made known. However, on Second Stage we recognised the fact that absolute anonymity is impossible because a certain number of people will know, depending on the family circumstances and the extended family's knowledge of the case. Nevertheless, the identity of the person charged with the offence and of the victim must be concealed as far as possible. Within that boundary the maximum amount of information should be made available to the public to ensure that there is transparency in the decision of the courts and about the level of such criminal acts.
We are aware that the more open a discussion is about such problems in society the more likely it is that people will come forward and reveal terrible situations which previously they would have kept to themselves and for which they would have continued to suffer for several more years. As a result of this openness people are coming forward ten, 15 and 20 years after enduring substantial difficulties and suffering as a result of the treatment they received from their families or from people outside their families.
I again congratulate the Minister for proposing these amendments. Members from both sides of the House who spent over four hours offering our views to the Minister on Committee Stage feel the effort was worthwhile. There is a great sense of satisfaction and achievement in finding that our views have been accepted on Report Stage as was promised. Too often in the past we have done the same only to receive no response or consideration.
I have a number of queries for the Minister. However, my principal reason for contributing to the debate is to compliment the Minister on how she has responded to the debates on Second and Committee Stages.
Like Senator Neville, I believe this House has the character and the capacity to look objectively at legislation. It has the capacity to improve legislation, provided there is a response and recognition from the Minister who is conducting the legislation through the Oireachtas. Far too often in the past a willingness to respond to the capacity of this House in that regard was not forthcoming. As it is forthcoming so willingly on this occasion from the present Minister, I must join in complimenting her. She has recognised the value of this Chamber in proposing beneficial changes to legislation on its passage through this House.
Amendment No. 1 deals with the manner in which the verdict and sentence can be announced and reported in public. The point I wish to make is linked to a certain degree with the point made by Senator Mulcahy. The charges cannot be announced in public or reported in the media. In practical terms what form of words will the judge use to communicate his decision to the public? The Minister may well say that it is a matter for the judge. It may also be that the same response could apply to the reporting of this in the press and media.
Perhaps the fault is mine, but I wonder how the judge can say that person A is guilty and the sentence is such and such without indicating what the verdict and sentence are related to. How does a report of this appear in the media? Does it state that person X has been found guilty and sentenced? There cannot be any reference to the charges. As there cannot be any reference to the charges I doubt that there will be a tendency to publish at all. As a result we will return to the problem that gave rise to the decision of Judge Carney. A rape charge was dropped and an incest charge proceeded with and, under the 1908 Act there could be no reporting of the matter. If a reporter is restricted to simply reporting that X has been found guilty, without saying of what, and sentenced accordingly, this may be considered not worth reporting. It may be a failure on my part to understand what is involved here. I have no problem with that outcome but I am simply looking for an explanation from the Minister. I understand very clearly the example she quoted of the need to restrict publication, especially in relation to small communities.
Amendment No. 3 refers, as has been already mentioned, to the print and broadcast methods of communicating information. There are, as has been said, other methods. I am sure the Minister recognises that and that, if necessary, she will consider means of including those other methods.
I welcome the penalties in amendment No. 4, which I believe are set at the right level. However, I have a problem with section 4 (3) which states:
It shall be a defence for a person who is charged with an offence under section 3 of this Act to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect, that the matter alleged to have been published or broadcast was matter specified in the said section 3.
I do not know how a person could validly expect to advance such a defence with regard to an incest case. The subsection could only have very limited application and I agree with that. However, it baffles my imagination as to how somebody could say, in dealing with what is clearly an incest case, that they neither suspected nor had reason to suspect that that was the case. However, I am sure that there are reasons for including it.
I congratulate the Minister on recognising the capacity of this House to improve legislation in an objective way. I hope that other Ministers in the future will be as responsive and positive in their dealings with this Chamber.
I thank all the Senators for their constructive input into this debate and for their words of compliment and commendation on the manner in which I have handled this legislation. I agree with the comments which have been made that it is essential for the combined wisdom of all Members of both Houses to come into play in legislation. It has, perhaps, been a fault of successive Ministers of various parties that they have, as Senator Neville said, regarded accepting amendments as some sort of criticism of their role.
It is particularly important now, with the increasing involvement of Members in committees, for a much higher percentage of legislation and work to be made available for both Houses of the Oireachtas to deal with. Legislation will have to be prepared as quickly as possible and brought to the House. Sometimes there may not have been time to fully consider elements of new legislation and the combined experience and wisdom of Members in their own walks of life — both before and during their time in this House — can be brought to bear in amending and improving legislation. I hope that I will be in a position as Minister for Justice to continue to leave myself open to listening to and taking on board valid recommendations made by Members, with the express purpose of improving legislation. The legislation which we are enacting in 1995 may be discussed in 2055 when we are all dead and buried and gone to our just rewards, even Senator Mulcahy.
I will still be here.
He might be, although he might not be a Senator. God knows what he might be at that stage.
President.
I hereby accept appointment to the——
An Leas-Chathaoirleach
The Minister, without interruption.
We are now discussing a piece of legislation which was enacted in 1908, when nobody in this House was born, so it is important that we scrutinise legislation.
As I said on Second and Committee Stages, Members of the Opposition publish Bills from time to time which they exhort Ministers to accept lock, stock and barrel. It is my duty and responsibility as a Minister to ensure that any legislation to which I put my name, and which becomes an Act of this State, stands the test of time. I will be open in accepting amendments and looking at legislation brought forward by the Opposition. However, sometimes the Opposition has the luxury of putting forward a Bill very quickly without the restrictions of examining how it interfaces with many other pieces of legislation.
It is my job and responsibility, and that of my Department, to examine each line, word, comma and apostrophe in proposed legislation to ensure that it does not cause damage to existing legislation. That may be tedious and result in a certain amount of criticism of me or other Ministers. However, that is how I will continue to operate to ensure that legislation will stand the test of time and that when our grandchildren are in these Houses they will not say that if Nora Owen had taken more care with legislation when she was the Minister, some of the subsequent difficulties could have been avoided. We are bringing in this legislation because when the Act was enacted in 1908 people could not have anticipated how it might have been interpreted many years later. Mr. Justice Carney, in his wisdom, interpreted the in camera section.
I welcome the fact that it appears that all my amendments will be accepted without a vote. Senator Mulcahy raised the issue of the word "charges". It was very important for me to have in this Bill the provision that the sentence and the verdict would he announced publicly. That was an element which Mr. Justice Carney made great import of in his judgment, where he said that not only could bona fide journalists not be in the court, but he could not even announce the verdict and sentence, if any, in public. Senator Howard also referred to this. It is conceivable that even with the amendment allowing bona fide journalists to be present in court, they may decide that the case is not worth reporting.
It must be provided that the verdict and sentence are made public because a caring agency may know a case about which it was concerned was being heard, although no names were used. If the agency wanted to find out what was happening, even if the case was not reported in the newspapers, it has the right to find out the verdict and sentence from an official of the court because it has been announced publicly. Even without the safeguard of it appearing in the newspaper, that must be available.
I will examine the position in relation to charges. I agree with Senator Howard; I do not believe it will be possible for a judge to announce the verdict or sentence, if any, without saying what the charge is, that the accused is guilty of the charge and what sentence he is imposing. I think it would be superfluous to include the word "charges" but I will look at this again when I bring the Bill to the Dáil. I do not think it is necessary.
Also, the type of case will undoubtedly be mentioned in the reporting by bona fide journalists. If it is an incest case, that is the what the charge will be; if the person is charged with both rape and incest that can be made clear. In my view the public announcement of the verdict and sentence is what is crucial so that any member of an agency can find out what it is.
Senator Mulcahy spoke about the new section 3(2) and asked why the writer or journalist was not included. I stress the offence is one of publishing and making public the article, not of writing it. If someone was being charged with the offence of publishing information leading to the anonymity of the victim being breached, the writer of the story would also be involved in the charge.
The reason the writer is not mentioned in the section is that the offence is not writing but publishing. The journalists can write as much as they want in the backrooms of newspaper offices but the offence is for the publisher or editor allowing that to appear in the newspaper. It puts a great onus of responsibility on sub-editors and those who allow the article to be published because a junior journalist could be covering a case and writing the story. There is the safeguard that it is up to the publisher or editor to ensure that is not done. That is why the offence is for publishing and not writing the article. Who knows how many articles are written but never get into the newspapers?
The Senator also mentioned the definition of "broadcast". This is taken directly from the definition used in the Acts on rape. It may well be that technology has changed since 1990 when the last Act was introduced. I am not sure if E-mail was as readily available at that time; I bow to the Senator's superior knowledge as he is a good deal younger than I and probably much more expert in these areas. Those of us over a certain age are struggling to get to grips with modern technology and I have not mastered E-mail yet. The wording in the Act of 1990 may need to be amended. The main concern of the amendment is to prevent the disclosure of the identity of victims to the general public and this has undoubtedly been achieved.
If there is now an extended concept of the word "broadcast" to include E-mail or use of computer or telephone technology to transfer information, that would affect all Acts using the word and the position would have to be tackled broadly in a Bill to modernise the use of the word. The point is well made and I will pass it on to my colleague, the Minister for Arts, Culture and the Gaeltacht, Deputy Higgins, because I imagine it would be under his auspices that a Bill would be drafted to redefine "broadcast" and reinterpret it for all other legislation using that terminology.
Senator Mulcahy asked if recklessness would be included under section 4; I believe it would be. The only defence someone can raise not to be convicted of an offence of making another person's name known is a defence under the new section 4 (3), as mentioned by Senator Howard, which states:
It shall be a defence for a person who is charged with an offence under section 3 of this Act to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect, that the matter alleged to have been published or broadcast was matter specified in the said section 3.
I am not sure I understand Senator Mulcahy's point about recklessness. This amendment provides that one shall not be reckless in reporting and publishing a case. If the publisher of an article is proven to be reckless, the only defence he or she might have is of not knowing he or she was being reckless but if recklessness is proven I think the Bill covers it. I do not think anyone can claim he or she was only reckless; if the person has published something which allows the victim's identity to become known he or she will be found guilty of an offence.
Will the Minister have that looked at also?
I will but I do not fully understand the Senator's point so perhaps he could speak to me later. I am of the opinion that the Bill is carefully worded in such a way that the only defence is based where one is not aware or suspected or had reason to suspect the matter alleged to have been published or broadcast was a matter specified in section 3. I will return to this when replying to Senator Howard.
Senator Mulcahy asked if we would consider publishing guidelines of how cases should be reported but I envisage it would be extremely difficult to devise them. The cases may be quite different. As Senator Henry said, it is important that in the reporting of cases there would be no undue prurience and sensationalism.
It is also important for people suffering in silence and anonymity in their homes who know something their father, brother or grandfather is doing to them is wrong but are not aware it is an offence. The publication of what may be distressing details of what someone else has suffered may allow a person to identify that what is happening to her is not right and she should not have to suffer it.
By drawing up guidelines one may prevent the publication of information which in turn would protect someone else and give him or her the courage to speak to someone, to say what is happening to her and that she always thought she had to put up with it, that it was perfectly normal for a member of her family to do that to her. Those people should not have to endure that.
By and large, our newspapers and broadcasters are conscious they must not create circumstances where copycat cases may happen. I also respect what the DPP said in the Burren Law School so I will keep a watching brief over this area. I recently met representatives from the National Newspapers of Ireland; that organisation expressed its concern that anything their newspapers would report would not be seen as being reported only for reasons of sensationalism.
Sadly, these awful things do happen. It shakes the complacency of people who believe such things do not happen in Ireland. Unfortunately they happen all the time and it is important that we, as legislators, do not do anything which puts anyone at risk of not coming forward and making known what is happening to him or her.
Senator Henry welcomed the new guidelines published to encourage close co-operation between health board workers and the Garda. I appreciate her support. This new set of guidelines will hopefully ensure that the kind of cases that have come to light only in recent years — and I am speaking of people who suffered for many years, some of them from a very young age into adulthood — will not be highlighted 20 years down the road, and responsibility for lack of action being laid at our door. The kind of facilities I will be putting in place for training and to have people with the necessary expertise made available to the care workers and specially designated gardaí who will be operating these guidelines will be provided on a regional basis. The Minister of State, Deputy Currie, has already made an announcement on this matter. In addition, we are working on mechanisms to ensure that ongoing training and available information are made available to these people. These guidelines will constitute a very important element, with legislation like this, in ensuring that people do not continue to commit these crimes and, more importantly, that these crimes will not go unnoticed and unreported while these women and young people suffer.
I also welcome Senator Henry's comments and reminder that this is a very traumatic area of health care. It must be realised that the gardaí will be made privy to the most intimate of details of people's lives and will have to make judgments where there is a suspicion that somebody is causing this pain and horror. Training and information will be made available. We will monitor how these guidelines are working, together with the need for staff and a good back up service. We cannot expect one person in a health board area to be the only person available.
Senator Henry also referred to the in camera provision. We are introducing this legislation because of Mr. Justice Carney's interpretation of “in camera”. We have tackled this in the Criminal Law (Rape) (Amendment) Act, 1990, and the Criminal Law (Rape) Act, 1981, and in the discussion document I will introduce, the whole issue of in camera will be re-examined so that we do not leave ourselves open to a further interpretation which, in turn, will overturn the work we are doing here today, that there will be a clear understanding of what in camera means and that there will be no obfuscation around the edges of what it means in any future cases.
Senator Honan welcomed the fact that these amendments have taken on board what she was trying to do in her Bill and in the amendments she put down on Committee Stage. I was not able to take them all on board because they were too composite and included sections that would not work. As regards sections 1 and 2 of the 1935 Act, the defilement of girls under 15 years of age and the fact that there is no anonymity provision, will be part of the discussion document. It will not get lost, but until I have completed this legislation, it would be inappropriate to get this discussion paper out in the open because I do not know what other amendments may be introduced in the Dáil and there may well be changes which will effect the document. However, I assure the Senator that it is an area of the law which I am examining again and will take on board any suggestions I can from people working in this area.
I thank Senator Neville for his kind comments about bringing in a much improved Bill. Amendment No. 1, which is a mirror of the relevant amendment in the Criminal Law (Rape)(Amendment) Act, 1990, is carefully worded to ensure that the word "victim" does not appear, because one cannot say that there is a victim until somebody has been proven guilty of creating a victim. That is why the wording is constructed in a negative way — it "... shall exclude..." the following people; if it was worded in a different way we would have to find some way of defining the person who might be the victim at the end of the case. It is constructed this way to ensure that the judge can decide. The wording reads: "... such other persons (if any) as the judge or the court, as the case may be, may, in his, her or its discretion, permit to remain.". The same wording is in the Rape Acts which I understand is working very well. People know that under that legislation persons — for instance someone from the Rape Crisis Centre — other than immediate families or people immediately involved, are allowed to sit with alleged victims in the court while the case is being heard.
Senator Howard raised the issue of charges and said that the charge could not be made known. That is not so because once there are journalists in court they may report the charges. The Bill does not in any way exclude the announcement of charges but, in a positive way, says that the verdict and sentence must be announced. To ensure that there is no misunderstanding, the charges can be made known in any reporting of the case. No matter how many journalists may be present in a court, they may decide, for their own reasons, of space or otherwise, not to report the case. Given the size of our newspapers, there are many cases — all kinds of cases, not just incest cases although, by and large, incest cases will probably be reported — which are never reported and never see the light of day. It is important, therefore, that the verdict and sentence be made public.
Senator Howard correctly points out that section 4(3) may be used as a defence and there will be a very limited application of it, but it is conceivable that something could be published that would identify a victim and that somebody could claim they would have had no understanding that an innocent piece of information might, in a small area, identify the victim. There has to be this small safeguard but it will not be used very often. The Senator is right and wise to have noticed it.
Amendment agreed to.
Government amendment No. 2:
In page 3, to delete lines 12 to 22.
Amendment agreed to.
Government amendment No. 3:
In page 3, between lines 22 and 23, to insert the following:
"3. (1) After a person is charged with an offence under the Act of 1908, no matter likely to lead members of the public to identify that person as the person charged or to identify any other person as a person in relation to whom the offence is alleged to have been committed shall be published in a written publication available to the public or broadcast.
(2) If any matter is published or broadcast in contravention of subsection (1) of this section, the following persons shall be guilty of an offence namely:
(a) in the case of matter published in a newspaper or periodical publication, the proprietor, the editor and the publisher thereof,
(b) in the case of matter published in any other written publication, the publisher thereof, and
(c) in the case of matter broadcast, any person who transmits or provides the programme in which the broadcast is made and any person who performs functions in relation to the programme corresponding to those of the editor of a newspaper.
(3) Nothing in this section shall be construed as
(a) prohibiting the publication or broadcasting of matter consisting only of a report of legal proceedings other than proceedings at, or intended to lead to, or an appeal arising out of, a trial of a person for an offence under the Act of 1908, or
(b) affecting any prohibition or restriction imposed by virtue of any other enactment upon the publication or broadcasting of any matter.
(4) In the section——
‘broadcast' means broadcast by wireless telegraphy of sound or visual images intended for general reception, and cognate words shall be construed accordingly;
‘written publication' includes a film, or a recording (whether of sound or images or both) in permanent form but does not include an indictment or other document prepared for use in particular legal proceedings.".
Amendment agreed to.
Government amendment No. 4:
In page 3, between lines 22 and 23, to insert the following:
4. (1) A person guilty of an offence undersection 3 of this Act shall be liable
(a) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 3 years or to both, or
(b) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both.
(2) (a) Where an offence undersection 3 of this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.
(b) Where the affairs of a body corporate are managed by its members,paragraph (a) of this subsection shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
(3) It shall be a defence for a person who is charged with an offence undersection 3 of this Act to prove that at the time of the alleged offence the person was not aware, and neither suspected nor had reason to suspect, that the matter alleged to have been published or broadcast was matter specified in the said section 3.”.
Amendment agreed to.
Government amendment No. 5:
In page 3, to delete lines 23 to 33.
Amendment agreed to.
Government amendment No. 6:
In page 4, line 2, before "felony" to insert "'life' for 'a term not exceeding 20 years' (inserted by the Criminal Justice Act, 1993) and".
This is a straightforward amendment which proposes that the maximum sentence that can be imposed by a court for the offence of incest by a male will be imprisonment for life. Senators will recall that there was an amendment put down in the names of Senator O'Toole, Senator Henry and Senator Lee on Committee Stage requesting this. The amendment will allow that a life sentence for a person convicted under section 1 of the 1908 Act can be passed. As explained, I was prepared to accept this in principle at the time. One of the difficulties which arose was that the Senators had not, perhaps, taken into account the fact that the maximum penalty for an incest offence had been increased to 20 years under the Criminal Justice Act, 1993. However, for the sake of consistency and the importance of giving the right signals, I am now altering that maximum of 20 years imprisonment for incest offences to a maximum penalty that can be imposed of life imprisonment. Hopefully the House will accept this straightforward amendment.
This amendment is supported by the Fianna Fáil Party. It is the same sanction as is provided under the 1935 Act for defilement. The good aspect of this provision is that it allows for a penalty from a suspended sentence through to a full term of life imprisonment. It is retaining full judicial discretion in the extent of the sentence. It is not Fianna Fáil policy to support, at least for these types of cases, any policies on minimum sentences. Minimum sentence requirements for second or third offences have been introduced in some foreign jurisdictions leading to the ridiculous situation of people getting 20 years for stealing a hamburger. The amendment is to be supported because, at the top end, it gives a judge the power to impose the maximum sentence possible and yet allows total discretion down to the imposition of a suspended sentence where circumstances deem it appropriate.
I welcome the inclusion of this amendment. Senator O'Toole, Senator Lee and I put forward our own amendment on this point. I am always being given medical advice and opinions by lawyers so I am careful about giving legal ones myself.
The fact that this is a felony may make it easier to bring the mandatory reporting of such cases a bit closer, because the crime of felony can also be alleged where there is aiding and abetting. This could have been very important in the case which was recently before the courts where a father tried to incite his son to have sexual intercourse with one of his sisters. Where that sort of case occurs, a person who is not actually the perpetrator of the act may look more seriously at the situation. I very much welcome the Minister's clarification of the situation regarding the sentences. I keep talking about mandatory reporting and the Kilkenny incest investigation. I urge the Minister to look carefully at that with her discussion group, as I am sure she will.
The Minister responded to the concerns expressed, particularly from the Independent benches, that the term "not exceeding 20 years" should be deleted and the term "life" substituted. I may be the odd person out in all of this but I am not satisfied, if the intention was to ensure the application of a more severe sentence, that this amendment achieves that. Life is a sentence which in practically all cases is imposed for murder. It has a measurable term, which is less than ten years in many cases and considerably less than the 20 years originally provided for in the legislation. If we are focusing on psychological effect, life does work; but in practical terms it has often emerged to be a very short sentence.
Senator Mulcahy made a point about minimum sentences which would not have effect under the original term used or under the new term. There was no question of the original term, "not exceeding 20 years", having any implication that a minimum sentence would be required. I am happier that the original term would in practical terms work out to be a far more severe penalty than what is now proposed.
Senator Henry mentioned mandatory reporting, which is an issue on which I hope those involved in the caring agencies and the legal and medical practices will make submissions to me in the context of the discussion paper. The new guidelines are very clear where a health board or the Garda are involved in the reporting of any case. It is as close as one can get to mandatory reporting, because they will have to make a judgment. In practice if a case is brought to the attention of a health board and/or the Garda, the exchange of information has to take place immediately. Effectively, there is a mandatory system of reporting between the Garda and the health boards in the sense that if somebody reports a case to the Garda, they must report the suspicion to the health board and vice versa.
Senator Howard talked about the change from 20 years to life. The case was strongly made on an earlier Stage that a number of other sexual offences have life as their maximum sentence. In 1993 the maximum sentence for incest was changed to 20 years because the 1908 Act provided that incest was a misdemeanour with a maximum sentence of two years. During Senator O'Toole's submission on Committee Stage, I got the feeling that he thought the sentence might still be two years and that was why he proposed the amendment. Thankfully, in 1993 it had been changed to 20 years.
There is one advantage to a life sentence. If someone gets a 20 years sentence, that is essentially most of their life. However, if somebody gets a life sentence and a Minister grants them early release after ten to 15 years, because it was a life sentence conditions can be imposed and that person can be under a life sentence of examination and checking to ensure they are not found guilty of committing a similar offence. The essential reason for changing it is to introduce some consistency into the maximum penalties for all crimes of this sort.
I assure the Senator that it does not provide for a lighter sentence than the wording "not exceeding 20 years". It is important that anything we do in legislation does not somehow give a signal that one crime of this nature is a lesser offence. If life is the maximum sentence for a range of sexual crimes but 20 years is the maximum for incest, it looks as if we are treating it less seriously than other serious sexual offences. That is the reason for the amendment.
I neglected to answer a point earlier. Senator Henry mentioned in camera rules in family law cases. I can assure the Senator that the area is being examined by the Minister for Equality and Law Reform. He is preparing legislation on domestic violence and other family law areas and the in camera rule will be examined in that context.
Amendment agreed to.
An Leas-Chathaoirleach
Amendment No. 7 has already been discussed with amendment No. 1.
Government amendment No. 7:
In page 4, between lines 4 and 5, to insert the following:
"5. Section 5 of the Act of 1908 is hereby repealed.".
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
The debate on this Bill was a textbook example of how legislation should be handled in the Houses of the Oireachtas. A Bill came into the House on which there were strong views and considerable disagreement. However, the manner in which the Bill was handled by Members of the Opposition and those on my own side, who put forward their views constructively and reasonably, and by the Minister, who accepted those views, meant that instead of confrontation we have a Bill which has been arrived at through consensus. That greatly strengthens the Bill and its impact, because there has been a pooling of the resources of the wisdom of the Minister, her Department and of Members of all sides of this House.
The Minister showed an openness, a willingness to listen and to accept that her Bill might not have been the final word on the subject and in so doing she has displayed the essential quality of a confident Minister, a Minister who is prepared to listen and admit that he or she was wrong or not completely right, who is prepared to take on board the views of the House. The end result is a Bill which is infinitely better, more acceptable and stronger than what was originally proposed, and for that I commend all concerned. I should really make a video of the Minister's performance here and send it to other Ministers so that they will see how legislation should be handled in the House.
I join in the congratulations to the Minister. This is very important legislation. When the Minister introduced the Bill she stated that it was to deal with a specific problem. She did not suggest that this Bill would embrace all the other areas of legislation which she was concerned about and which she will publish in her discussion document. Everybody in this House agrees that nobody could have assumed in 1908 that the in camera ruling could have resulted in the care agencies being excluded from vital pieces of information which they needed to protect victims of incest.
I join with Senator Mulcahy on this side of the House and all the Members of the Seanad in congratulating the Minister on the way in which she has dealt with this legislation. When I spoke on Second Stage I said that I knew the Minister from another chamber. I have served with her in Dublin County Council and Fingal County Council before she was rightly elevated to the position of Minister in the new Government. I knew her in that chamber to be a very capable, confident and formidable politician, but I have to add today that she is a very caring Minister. She cared enough about the success of this legislation to take on board suggestions and amendments from all sides of the House. Other Ministers in the present Government who were members of the previous Government——
They were members of the last Government.
——I accept that, who were members of the previous Government, have come into this House to introduce their Bills and have said that they were open to suggestions from all sides of the House; but in all cases that has not happened. We have had cases where there has been almost all party agreement in this House that a Bill could or should be altered so as to improve it and the Minister has steadfastly refused to accept those suggestions. The Minister, Deputy Owen, if she continues the way she has begun with this legislation will certainly have more than earned her stripes, she will have done a lot for democracy and for the Seanad. I commend her for introducing this legislation.
I have made my views known. I welcome the passage of this Bill through the House. On Second Stage it was stated that incest is a fact of life and that it must be eliminated. It cannot be fully eliminated, but we owe a duty of care to our children to do everything we can to eliminate it. We identified that ongoing contact with the professionals is inadequate at present. There is no proper code of approach by professionals, parents or relatives on how to tackle this very sad problem.
I again compliment the Minister. I will not go into detail because I have already done so. The Bill was a quick reaction to a situation that developed within the courts. Similar developments have not prompted such a quick and necessary reaction in the past. I also compliment Senator Honan for her attention to this area in conjunction with the Minister and in introducing a Private Member's Bill to the House which is now reflected in the Minister's Bill.
The Minister deserves great credit and credit was given to her today in this House. I was very pleased to be involved with this Bill and its passage through the House. The way in which the Minister dealt with this legislation gives us all great hope. As Senator Manning has said, she is an example to all of her colleagues in Government.
I congratulate the Minister. The suggestion, made by Senator McGennis, that a video should be sent to the other Ministers was very useful. The fact that the Minister took cognisance of the great concerns we all expressed on Second Stage and incorporated into the Government Bill so much of the work Senator Honan put into her Private Member's Bill is greatly to her credit. I hope that the Minister will tell the other members of Government that we are charming people and that she would like to introduce a lot of her legislation in this House in the future.
I thank the Members for their warm and complimentary comments. I never had the privilege of being a Senator, so this for me was a very good exercise in seeing how the Seanad should work and also in being able to contribute to the work that Senators do here and to enjoy the benefit of the expertise available in this House. It probably is an easier House to do that in, so I am glad this Bill was initiated here. I do not believe that we would have had as constructive a debate in the other House. The whole set up here leads to the kind of democracy in legislation that we should have.
In answer to Senators' remarks about colleague Ministers, I hope that colleague Deputies in the other House might also learn that it is not a sign of weakness, tardiness or lethargy when a Minister takes the opportunity to listen carefully to what Senators say and to take on board the wisdom and the experience that is obvious in the comments Members here make. A number of issues were raised during the debate which have been very useful. Although they were not specifically relevant to this Bill, they will be very useful to me and to my Department in preparing and finalising the discussion paper. I may come back to Senators who have raised particular points to get further information from them. I will of course circulate that discussion paper to Members of this House when it is available so they can study it carefully and put their views to me.
It is my intention to publish that discussion paper as early as possible after the enactment of the Bill and I look forward to receiving the views of interested parties. There is a great deal of knowledge out there. Many people have been working quietly in the background with victims of sexual abuse and sexual crimes. I need to hear what they have to say. It would be easy for me as a Minister to gain many kudos by rushing in with legislation in this very difficult area, but I would be wrong to do that without taking on board the experiences and the advice that is there to be offered to me. I hope to be able to do that and to come back into this House with further legislation to tackle some of the other issues that have been raised. I thank Senators for their co-operation and their compliments.
Question put and agreed to.