Dáil Éireann díospóireacht -
Tuesday, 30 May 2006

Vol. 620 No. 4

Leaders’ Questions.

Mr. Kenny

As a public representative and a father, I am appalled by today's decision by the High Court which releases a pervert back into society. The fact that a person who deliberately plied a young girl of confirmation age with alcohol and then had sex with her has now been released back into society at a time when this Government failed to see such a scenario coming is an appalling example of incompetence in respect of protecting young people. Who is in charge on the Government benches? Why did the Minister for Justice, Equality and Law Reform state last week that there was no gaping hole in the law and no need to rush serious legislation?

Thanks to the Taoiseach's breathtaking incompetence, Mr. A has walked free and so might Messrs. B, C, D, E and F. We should think of Mr. B and a pervert who serves four life sentences for having sex with girls aged six, eight and ten years. The court described his case as one of the worst to come before it and described the defendant as manipulative, depraved and cunning. It now appears that he could also walk free.

The people want to know how the Government allowed this to happen when the Attorney General was defending this case in the Supreme Court and when the Government and Department of Justice, Equality and Law Reform did not appear to know what the other arm of Government was doing. This depraved individual can now return to society where the same thing could happen again this weekend. How is it that while the Attorney General was defending this case in court, the other arm of Government did not know what was happening?

I acknowledge that the Taoiseach and Tánaiste both stated that this issue is complex, but the Minister for Justice, Equality and Law Reform stated last week that there was no need to rush serious legislation and that an instant response was not required because there was no gaping black hole in the law. He should tell that to the thousands of parents who have children of confirmation age, one of whom was plied with alcohol and raped by an individual who can now walk free. The Taoiseach, the Minister for Justice, Equality and Law Reform and the Attorney General knew that such a scenario could take place. Of all the mistakes we have witnessed, this is the most scandalous because this Government has failed to put in place protection for young children. This weekend, children will make their confirmation. Unfortunately, one such child was filled with drink by Mr. A and subsequently had sexual relations. That is not the kind of country in which I want my children to live. Will the Taoiseach say what he will do about this matter?

Mr. Bruton

Hear, hear.

The Taoiseach

Deputy Kenny knows that any new legislation will not deal with the seven cases retrospectively. We cannot have retrospective legislation, which is my first point.

As the House is aware, the Supreme Court struck down section 1(1) of the Criminal Law Amendment Act. I said last Wednesday that I would check to see how many people are involved. Seven people are currently imprisoned as a consequence of convictions under that section. The Supreme Court decided on the C.C. v. Ireland & ors case, which was brought by someone who was not convicted of an offence. The case concerned a person who was charged with the offence but had not been tried. The Supreme Court decision did not, therefore, decide the legal status and position of convicted prisoners.

The issue has, however, given rise to the Article 40 application by Mr. A. This afternoon, Ms Justice Laffoy in the High Court found that Mr. A was not being detained in accordance with the law. Accordingly, she directed his release from detention in Arbour Hill Prison. The Article 40 proceedings were taken against the governor of Arbour Hill Prison. I am informed that the governor intends to appeal the case to the Supreme Court. As the matter is before the courts, I will not say any more about that particular case.

Deputy Kenny raised an important point that I want to address, that is, the fear and concern of parents, teenagers and children. It is important that some reassurance is given in respect of this issue. The striking down of section 1(1) of the 1935 Act does not leave a gaping hole in our laws.

Ms Burton

That is a disgrace.

Mr. Howlin

It is shameful.

The Taoiseach

Our criminal code still prohibits sexual offences against young persons, the crime of rape remains part of our law and the Garda and Director of Public Prosecutions are duty bound to uphold and enforce these laws.

Regarding the laws on sexual assault, there is a 14-year penalty for sexual assault on a minor, the penalty for forced and aggravated sexual assault is life and the charge of rape is addressed in section 4 of the Criminal Law (Rape) (Amendment) Act 1990. The legislation and sentences are in place. It is wrong, misleading and creates a sense of fear to say these Acts do not apply.

There is a significant issue with which we must deal. As I said last week, the matter is complex. I assure Deputy Kenny and the House that we have spent an enormous amount of time on this issue since last Wednesday. I will not get into an argument about whether we know Supreme Court or High Court judgments are coming down the track or whether we know what the Supreme Court will do.

Mr. Perry

The Government should have known.

Mr. English

It should have known 16 years ago.

The Taoiseach

No. People know it is not true that we have a debate with the Supreme Court or Judiciary before they make their judgments, nor is there an early warning system for the Department of Justice, Equality and Law Reform, the Attorney General or me.

Mr. McCormack

It is obvious.

The Taoiseach

No, the Supreme Court judgment is not obvious.

Mr. McCormack

It is.

Mr. English

What is the commission for?

An Ceann Comhairle

Allow the Taoiseach to continue.

The Taoiseach

I am trying to answer Deputy Kenny's question seriously. In fairness, he raised the matter constructively last week.

Mr. J. O’Keeffe

The matter was signalled 16 years ago. Is that enough time for the Government?

Mr. Sargent

It has been 16 years.

The Taoiseach

I will address that point if I get a minute. Will Deputies allow me to answer Deputy Kenny's question?

We must deal with the issue and we will introduce legislation in this area promptly. We will try to have the legislation by the weekend, if we can. Someone outside the House asked me about this matter today. If we can do that, if the Cabinet sub-committees work through the weekend and if we have the legislation ready, we will bring back the House next week. This is an important issue and we have no problem with dealing with it next week.

The Tánaiste, the Minister for Justice, Equality and Law Reform, the Attorney General and everybody else are committed to trying to do this. However, there are complexities. It is not simple. I am not a trained lawyer but I have listened to many of the legal points in recent days. We will introduce legislation in this area, but it will not deal with the current cases. In the meantime, existing laws will be enforced.

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

There are other offences in the criminal code that I did not mention during the exchange a few minutes ago, namely, false imprisonment, harassment and so forth. A broad range of criminal offences are unaffected by the Supreme Court decision. We are determined that the law will be enforced against those who engage in any kind of predatory sexual abuse of young people. The full resources of the State will be employed in ensuring that these laws are vigorously enforced.

We will quickly introduce a new law that will deal with the issues pointed out by the Supreme Court's decision. This does not cover the other cases because they involve people who have been convicted. There is a difference in law between those who are convicted and those who are fighting a case about a conviction. We must deal with these issues. The governor will make an appeal to the Supreme Court on the Article 40.1 case today. All the other laws on sexual assault and aggravated sexual offences are in place.

Mr. Kenny

A total of 16 years ago, the Law Reform Commission recommended changes in the legislation. Why has no early warning system been put in place? Would the Attorney General, who defended the case before the Supreme Court and sits at the Cabinet table opposite the Minister for Justice, Equality and Law Reform, not have been able to inform the Government that the case was going before the Supreme Court? In light of the recommendations made by the commission, should there not have been an understanding that this might have been the Supreme Court's decision?

Last week, the Taoiseach said it was important to plug this loophole, which is a serious gap in the law. On behalf of this side of the House, I offered full co-operation in this respect. Deputy Jim O'Keeffe produced a Bill that was never published. Out of courtesy, it was sent by the Bills Office to the Department of Justice, Equality and Law Reform where someone subsequently briefed journalists on its content, which was an unprincipled act of politics.

Mr. Durkan

Hear, hear.

Mr. McGinley

It was despicable.

Mr. Allen

Guess who?

Mr. Kenny

On the same day, the Minister for Justice, Equality and Law Reform dismissed the issue and said that there was no black hole. The Government should tell that to the victims of Mr. A or Mr. B.

Mr. Durkan

Hear, hear.

Mr. Kenny

What will the Government do this weekend to protect society from Mr. A, who is walking free? He filled a young girl of confirmation age with drink and had sex with her. That person will be out in society. What will the State do about protecting children from such people?

It seems that the Minister is not in touch with the mood of the people when he says that there is no need to rush serious law. Will the Taoiseach confirm that the House will return next week and deal with this issue? The Labour Party has produced a Bill to plug the hole in the law, as has the Fine Gael Party. Why are all the great people in the Government humming and hawing when Mr. A, Mr. B, Mr. C , Mr. D and others like them could be released into society without the protections in place to safeguard the young children of this country from that type of perversion? It is appallingly and horrifyingly incompetent. Unfortunately, young people will pay the price for this incompetence. What will the Government do about Mr. A? What will it do in respect of the House sitting next week and plugging the hole in the law? We must deal with this issue. We must have some measure of unity in our attempt to protect the young boys and girls from that type of perversion.

The Taoiseach

All Deputies will agree with me that the first priority is the protection of children. The Supreme Court judgment is too serious for gamesmanship or point scoring so I will not get into that.

Mr. Naughten

Tell that to the Minister for Justice, Equality and Law Reform.

The Taoiseach

I have to say again to Deputy Kenny that no legislation will plug the cases of Messrs. A, B, C, D, E, F or G. There is no case for seven people. The Supreme Court has given its judgment on that.

Mr. Kenny

What about next weekend when someone else does it?

The Taoiseach

I want to be clear about that point. The case we are talking about, Mr. A, is being appealed to the Supreme Court. Anyone who believes he can go out next weekend and do anything because there is no law is mistaken — offences are stipulated so that the law can protect young people. Sexual assault carries a 14 year penalty, a sexual incident with a minor where force is used carries a penalty of life imprisonment, any case of aggravated sexual assault carries a penalty of life imprisonment and there are penalties for rape. Five Bills were enacted in this House on sexual offences during the 1990s and all of those issues are dealt with. There are other offences covered by the criminal code, such as false imprisonment and harassment, and all of these issues are covered. That is the answer to the question about what could happen next weekend.

I spent some considerable time over the weekend looking back on the position from 1990 because it was suggested that all was spelled out in 1990 and it was obvious to everyone. Deputies will be aware that the change on mistake with regard to age recommended by the Law Reform Commission in 1990 was not based on constitutional issues at all, it was based on the argument that "Irish law in this respect was unduly harsh and wholly out of step with the law in other jurisdictions".

It is also totally untrue to say that successive Governments since 1990, which included practically all parties in this House, did nothing about the Law Reform Commission report recommendations. There were more laws enacted in the 1990s on this than in any other decade since the foundation of the State. The Law Reform Commission report of 1990 on child sexual abuse made a small number of recommendations on the criminal law governing sexual offences against children. A recommendation to decriminalise homosexuality, which was the major issue, was dealt with in the Criminal Law (Sexual Offences) Act 1993. I have been in the House for long enough to remember that debate. Recommendations that the laws on incest and the criminal liability of under-age girls should not be changed were also complied with.

As I said last Wednesday, the Department of Justice, Equality and Law Reform published a discussion paper on the law on sexual offences in 1997-98. That discussion paper sought views on all topical issues concerning the criminal law protecting children against sexual abuse, including the age of consent and mistake as to age, where the Law Reform Commission recommended changes. Responses to the invitation for views disclosed no appetite for change among those who expressed views on the paper. It was looked at. This assertion that it was all there since 1990 or since 1930 is just not true. All of the groups submitted their views and decided not to change it.

Views received on the paper, however, formed the basis of the Sex Offenders Act 2001 and continue to inform the criminal justice (trafficking and sexual offences) Bill, which deals with the issue of child prostitution addressed in chapter 11 of the paper. Criminal law was strengthened in the 1990s, with Acts in 1993, 1998 and 2001. I have mentioned the Child Trafficking and Pornography Act 1998, the Sexual Offences (Jurisdiction) Act 1996 and provisions in Part 12 of the Children Act 2001. It is untrue to say that this issue was not fundamentally examined.

It might sound odd to people outside the House that the Supreme Court does not ring the Taoiseach or Minister of the day to say that a judgment is coming up.

Mr. Allen

No one said that.

The Taoiseach

It has been said in the House and outside it. It does not happen that way. I had no idea and neither had my colleague.

Mr. Allen

It was a possibility.

The Taoiseach

Everything is possible.

Mr. Allen

The Taoiseach was more interested in leaking documents.

The Taoiseach

I have nothing to do with leaking documents.

Mr. F. McGrath

Ask the Minister for Justice, Equality and Law Reform.

The Taoiseach

I said last week, and I repeat today that Deputy Kenny on this issue last week was fair and reasonable about putting a point and I answered that. I do not leak documents. I do not know anything about the leaking of documents and I do not agree with it.

Mr. Allen

Someone does. It would not be the first time.

Mr. F. McGrath

The Taoiseach should ask his colleagues around the Cabinet table.

The Taoiseach

I would like to say to Deputy Kenny that I can do something about the seven cases. In the Government's view and my view, however, there is a distinction between these cases and someone resisting an offence, as happened in the case the Supreme Court made its judgment on. It was a long drawn out case, the first part of it was heard last summer and it may have been submitted a year before that.

In the seven other cases I mentioned, people were prosecuted for some very serious offences. I am aware of some of the facts. We will appeal this case to the Supreme Court and fight those but we must deal with the loophole. If we can finish this by the weekend we will do it. It is not simple. I say that with the greatest respect to the people who have drafted Bills. There is a difference, however, when the Government drafts Bills that must be based on legal advice. We must deal with the two main issues that I have mentioned. We must ensure the laws are not discriminatory on grounds of gender — the 1930 Act was based on boys — and we must ensure that the law has defences required by the Supreme Court decision to sustain their constitutionality. We will do our best to deal with those issues and I will consult the Opposition. If we have the legislation by the weekend, the Cabinet committee will meet then and we can bring it to the House next week to pass it. I have asked everyone to try to do that.

Mr. Rabbitte

The Taoiseach misunderstands that parents are not interested in a dissertation on criminal law or the contents of the 1990 Law Reform Commission report. They want to know if their children will be safe this weekend.

It is not right to give us a lecture either on the separation of powers between the Supreme Court and this House. The Attorney General does not defend a constitutional action without taking instructions from the line Department and the Attorney General knew in doing so that he might lose the case. Why was no effort made to anticipate the situation if the relevant section was struck down?

Last Thursday I said to the Taoiseach "Quite clearly, if an offence is deemed unconstitutional, the trial and conviction are invalid, as is the subsequent imprisonment". One did not have to be a practising senior counsel to know that was the situation. The Taoiseach told this House in reply that there is no question of people walking free. The situation has turned out otherwise and it seems the Taoiseach does not appreciate its gravity as far as parents are concerned or the gravity of the situation for the Minister for Justice, Equality and Law Reform and for this Government.

The Minister for Justice, Equality and Law Reform, in his weekly appearance on "Today with Pat Kenny", told parents that the Supreme Court decision "is not the gaping void that some people are arguing". Now we know that it is, and there is no point in confusing the past with the future. The past has happened. What we need to do now is protect young people in the future, starting immediately. If the Taoiseach thinks he can fly away to America tomorrow morning and avoid Leaders' Questions and, more disgracefully, put this House into recess for ten days, he really has lost touch with the people of this country because this House, particularly this side of the House, will not tolerate circumstances where an issue like this confronts the parents of this country while he puts this House into recess. That is simply not acceptable.

The Taoiseach's Government has made many mistakes. He has wasted much money. He has bought machines that do not work and he has bought computer systems that do not work, but this is about the protection of our children. This is materially different in character and to confuse and obfuscate about whether there is aggression involved or whether there are other aspects of the criminal law that might be invoked for offences that might be committed tonight, tomorrow night or at the weekend is not dealing with the issue that concerns people.

We published a Bill on this area. The Bill is available to the Minister for Justice, Equality and Law Reform if he wants to take it on board.

An Ceann Comhairle

The Deputy's time has concluded.

Mr. Rabbitte

This Bill would seek to reinstate the status quo while the broader debate the Minister has opened about the age of consent and the substantive issue could continue but in the interim, the loophole needs to be closed off. This Bill provides for that situation. It allows for the defence of honest mistake but other than that, it reinforces the one section that is now gone and three further sections that are at risk. We can produce such a Bill and I am assured by expert opinion outside the Labour Party that there is no constitutional infirmity in the Bill. The Minister may sneer but how can he explain to our people in this country the lethargy and complacency with which he has confronted this issue since it first became known that this case was stated before the Supreme Court? To imply that there is no contact of any kind with the Supreme Court is quite proper.

An Ceann Comhairle

The Deputy's time is concluded.

Mr. Rabbitte

There ought not to be but when the case was stated the Government knew what might have happened and it took no steps to provide for that situation. We are left in the circumstances now where there is a gaping loophole in the law that threatens the protection of our children from predators starting immediately and all the Taoiseach can say is that he is looking at it. He will fly to America tomorrow, he will put the House into recess for ten days, he will then come back and we might or might not have a Bill. That is not acceptable. Whereas many people allege he is losing his touch, he is really out of touch if he thinks he will get away with that on this occasion.

Deputies

Hear, hear.

The Taoiseach

As regularly happens, Deputy Rabbitte did not listen to much of what I said at the outset so I will repeat it.

Mr. McCormack

Not all the waffle again. Keep to the point.

An Ceann Comhairle

Allow the Taoiseach to speak.

The Taoiseach

I will make the points. I said that the Supreme Court has struck down section 1(1) of the Criminal Law Amendment Act 1935 and seven prisoners are currently imprisoned in consequences of a conviction under that section. Those cases cannot be dealt with in a new Bill. The C.C. case was brought by a prisoner who was not convicted of an offence. The case concerned a person who was charged with the offence but had not been tried. The Supreme Court decision in the C.C. case did not decide, therefore, the legal status and position of convicted prisoners. That is the point. In our view there is a difference in these cases.

Deputy Rabbitte contends that the Attorney General would not defend a case if it was not consented to by the line Department. That is not how the system works. In this case it was the Director of Public Prosecutions, on behalf of the Attorney General, who fought the constitutional issue in the case. That is a fundamental misunderstanding by Deputy Rabbitte on the key issue.

Deputy Rabbitte wants to put the case that every law is struck down and that I am trying to confuse the position. I am making the point, which he knows well, that matters of sexual assaults, aggravated sexual assaults, rape and rape contrary to section 4 are covered in Acts passed by this House which are still law. A person dealing with any of our children under any of these Acts is subject to the full rigours of the law and to try to give an impression that that is not the case is wrong, and Deputy Rabbitte knows that.

I will say nothing about the Labour Party lawyers or experts. I am sure they are all top class, but we have to make sure that the laws dealing with this issue, which I have said on two occasions was on two points, are not discriminatory on grounds of gender. We have to ensure that the law has defences required by the Supreme Court in terms of its decision to sustain their constitutional validity. We have to get that right. I have already said, although Deputy Rabbitte obviously did not hear me——

Mr. Quinn

The Taoiseach is misrepresenting him.

The Taoiseach

——that we will endeavour to have that done by the weekend. It is the view of the people advising the Government, who are all eminent legal people, both inside and outside, that this could take us a week or so to do. I have asked that they have it done by the weekend. Deputy Rabbitte will appreciate that I am unlikely to draft it in the 46 hours or so I am in the United States, but I will be back by the weekend and we can clear it then. If we have it ready, which, as I said to Deputy Kenny, we intend to do, the House will sit and deal with it next week. I am trying to deal with a serious issue in a serious way and not just make partisan points.

Deputy Rabbitte is trying to say that everything is struck out by the Supreme Court or that a child going out tonight can be attacked by every lunatic and there is no law to deal with that.

Mr. Howlin

Nobody said that.

The Taoiseach

Let us try to be serious about serious issues. All those laws are in place. If somebody does that tonight they will end up with perhaps a life sentence or 14 years. We know that. There is an issue we have to deal with. The Supreme Court has made its judgment. That is the end of the argument and there is no point in me making any view about the Supreme Court. The position is clear. There is separation of powers. The Supreme Court made a judgment. I agree with Deputy Rabbitte that some other sections of that legislation may be in danger also and we have to deal with those. We have to look at not only section 1(1) but other aspects also. We are doing that and we will deal with this issue as expeditiously as possible.

Mr. Rabbitte

I told the Taoiseach last week that in my view if an offence is deemed unconstitutional, the trial and conviction are invalid as is the subsequent imprisonment. The Taoiseach said that nobody would walk free as a result of the Supreme Court judgment. This is the same Taoiseach who asks me now to be assured that other aspects of the criminal law will protect our children from this weekend on. Nothing the Taoiseach has said since this crisis happened lends credence to that assurance. Aspects of the criminal law may indeed protect some children but it goes without saying that what has happened here leaves many children vulnerable to predators without any protection from the law. That is a fact and the Taoiseach knows it is a fact.

I ask the Taoiseach again what he intends to do about it. What is all this confusion about? When it first broke, the Taoiseach did not even know the number of prisoners, for example, who would be affected. He is now trying to say that the age-old convention is that any Minister or head of a Department whose laws under his or her aegis are the subject of contest in the Supreme Court would not know about it. Of course they would know about it. Of course the Minister for Justice, Equality and Law Reform knew this action was in train. If he did not know, he ought to have known. What is more important than the protection of our children? Is the Minister seriously telling this House that such an action was before the Supreme Court and he was completely unaware of it? To suggest the Supreme Court was seized of this matter and the Minister did not know is an act of gross dereliction, if that is true.

Mr. McCormack

The Taoiseach does not know what to say.

Mr. Rabbitte

What is the next step in this process? There should be no slithering, sliding or the Taoiseach stating he will be back in 64 hours and we can meet at the weekend. Will this House be in session next week? Why is it that if my colleagues can draft legislation, it cannot be done in the parliamentary counsel's office on the instructions of the Minister for Justice, Equality and Law Reform?

An Ceann Comhairle

The Deputy's time is concluded.

Mr. Rabbitte

How can the Taoiseach explain why this house is not sitting next week? It is a disgrace. It ought to sit. In circumstances where we are confronted with this kind of crisis, to think that this House can be shut down so that the Government can escape accountability is a profound and fundamental mistake.

Mr. McCormack

The Government is afraid of the matter.

Mr. Rabbitte

There is no point in trying to confuse the issue about the seven prisoners. I know the position of the six remaining prisoners.

Mr. Howlin

The Deputy told the Taoiseach.

Mr. Rabbitte

I would be more interested if the Taoiseach told me if it was the intention of the DPP to charge them again under the other legislation he is talking about. I know the position — that, unfortunately, has happened and is in the past. They are the historical cases.

An Ceann Comhairle

The Deputy's time is concluded.

Mr. Rabbitte

I want to know about the future. Can the Taoiseach give an assurance to parents that from this weekend their children are safe? That is the issue. All the Taoiseach is saying is that we will have a wide-ranging debate about the age of consent, equality of gender etc. That is an interesting debate that we should have in the future. In the interim we need this loophole shut off.

Deputies

Hear, hear.

Mr. Rabbitte

I am offering one way of doing this. If the Minister believes he has superior advice to bring to bear, let him bring it.

Mr. Howlin

Let him do it tomorrow.

Mr. Rabbitte

This House should sit until we enact interim legislation that protects our children until we have the wider debate.

Deputies

Hear, hear.

The Taoiseach

All the legislation on the Statute Book protects children against sexual abuse——

Mr. English

If Mr. A did it again tomorrow, what would happen? What would we do then?

Mr. Howlin

It does not cover it.

An Ceann Comhairle

I ask the Deputy to allow the Taoiseach to respond.

Mr. McDowell

The man would be charged with sexual assault.

An Ceann Comhairle

The Deputy is not the leader of the Labour Party.

The Taoiseach

The person would be charged with sexual assault.

Mr. English

Under which law?

An Ceann Comhairle

I may have to ask the Deputy to leave the House.

The Taoiseach

It would be under any of the laws relating to sexual crimes.

Ms Burton

The man would have the defence of not being sure about the age of the child.

Mr. English

It is a fair question.

An Ceann Comhairle

There is a time and a place for the Deputy to ask a question. The Deputy owes it to Deputy Rabbitte to let him hear the answer to his question.

Ms Burton

He has a defence if he does it again. It is left open.

An Ceann Comhairle

Deputy Burton is not the leader of her party. Deputy Rabbitte is entitled to hear the Taoiseach.

Ms Burton

I am concerned that children could be raped and this man will have a defence and the Taoiseach will not close it.

An Ceann Comhairle

The Deputy should be quiet. The Taoiseach should be heard without interruption.

The Taoiseach

The answer to Deputy English's question is that all the relevant Acts — including the 1993, 1998 and 2001 Acts, the Child Trafficking and Pornography Act, the Sexual Offences (Jurisdiction) Act and Part 12 of the Children Act — are still law and are not affected by the striking down of section 1(1). This relates even to other dangers in the Criminal Law Amendment Act 1935.

Mr. J. O’Keeffe

Have the heads of the new Bill been agreed?

The Taoiseach

I have listened and I would like to answer. Deputy Rabbitte asked me about confusion, but there is no confusion.

Mr. J. O’Keeffe

Have the heads of the new Bill been agreed?

Mr. D. Ahern

The Deputy should let the Taoiseach answer.

An Ceann Comhairle

I ask Deputy Jim O'Keeffe to allow Deputy Rabbitte to hear the answer to his question.

Mr. J. O’Keeffe

He would be very interested in the answer to my question.

An Ceann Comhairle

This question is already nine and a half minutes over time.

Mr. J. O’Keeffe

Has the Taoiseach got an answer?

An Ceann Comhairle

The Taoiseach is entitled to respond, just as Members are permitted to ask questions. I ask the Deputy to be quiet or he will have to take the consequences.

The Taoiseach

Deputy Rabbitte accused me unfairly of not knowing the number of prisoners last Wednesday morning. I stated in the House that I would know by lunchtime, and I did. He took an unreasonable position. I stated there was no blanket rule, as the advice had been that there was no blanket rule. That is the reason we opposed the case yesterday. We fought the case, the court ruled as it did today in habeas corpus and we lost that case. We did not consider that the same position would apply with regard to seven prisoners who are currently convicted and a case where a prisoner had not been convicted of the offence. As I stated earlier, that case will be fought in the Supreme Court.

With regard to consultation, I can only again outline the system for Deputy Rabbitte who sat at the Cabinet table for a while. In this case, the DPP had the carriage of the case. Under the 1975 Act, the DPP does not discuss these cases, and there is no requirement for him to do so. There is no position where the DPP would discuss an Act. The DPP had carriage of the case and it was taken.

Mr. Naughten

Does the DPP know what is going on?

The Taoiseach

I hope the Deputy knows what is going on. There is a separation of powers and the DPP could not do that.

Mr. J. O’Keeffe

Have the heads of the Bill been agreed?

An Ceann Comhairle

The Taoiseach should be allowed to speak without interruption. I ask Members of the Fine Gael to allow the Labour Party leader to hear the answer to his question.

The Taoiseach

Deputy Rabbitte has accused me of slithering and sliding, of stating that I will be out of the country and of indicating that we will look into the matter next week. I did not say any of those things. I stated that for the limited time I will be out of the country, those who are working with the Minister for Justice, Equality and Law Reform and the Attorney General will try to complete this Bill. It is their view and the view of people outside the issue that it would be very unwise to run with just any old proposal. We must work it out carefully and get the two main points right to ensure that the laws are not discriminatory on grounds of gender, which is what the Supreme Court said, and that the defences required by the Supreme Court decision are dealt with.

Many other people looked at this legislation over the past 15 years, deciding in many reviews, five Acts, a discussion paper and many submissions that the issue need not be dealt with. Experts sending in submissions from the various arms of the law decided this. The Supreme Court has now said that we have to deal with it. To run off a Bill and not check it comprehensively would be a mistake.

Mr. J. O’Keeffe

Have the heads of the Bill been agreed?

The Taoiseach

Will Deputy O'Keeffe stop interrupting? If Deputy Jim O'Keeffe has all these answers, he was there from 1994 to 1997. Why did he not solve this problem then?

Mr. J. O’Keeffe

Have the heads of the Bill been agreed? The Taoiseach does not like to answer my question.

An Ceann Comhairle

Deputy Jim O'Keeffe is not entitled to ask a question.

Mr. D. Ahern

The Deputy should keep quiet.

The Taoiseach

The Deputy was a Minister in the Government then. Why did he not solve it?

An Ceann Comhairle

The Chair will have to take action against Deputy Jim O'Keeffe if he persists.

The Taoiseach

I am trying to answer Deputy Rabbitte. Deputy Jim O'Keeffe's party had its chance and did not do it.

Mr. Allen

Deputy McDowell thinks the matter is very funny. It seems to be a laughing matter.

The Taoiseach

We will try to have the Bill by the weekend. I cannot say to the legal people working on this that they must have it. The Deputy knows this. We will try to have it by then. If we have it, I have stated that I will consult the Opposition. I will be back on Friday. I will not be gone for too long. The work will go on. The relevant Cabinet committee can meet over the weekend and we will deal with the Bill next week. I stated this very clearly half an hour ago to Deputy Kenny. I am far from slithering and sliding, and the Deputy is ignoring what I have said.

These are the issues that must be dealt with. The Supreme Court struck down a section of an Act and we must deal with it. The Government will do so.

Mr. J. O’Keeffe

The Government has not reached agreement on the terms of it.

Caoimhghín Ó Caoláin

Does the Taoiseach anticipate that others of the seven imprisoned under those parts of the 1935 Act that have been deemed unconstitutional will now also appeal either their convictions or sentences, as with the case decided on this afternoon? Will the Taoiseach advise us if the Government this morning gave consideration to the implications of the High Court decision announced this afternoon relating to the release of this prisoner? Did it consider the consequences, and not only in the terms which have already been spoken of by other voices?

Rather than being repetitious I wish to explore some other elements. Is the Taoiseach aware there is a potential that this person, now released, may sue the State? Are we to face the outrage of one or more individuals taking a case against the State, such as the self-confessed beast who preyed on a 12-year old child and whose case was successful in the High Court this afternoon? Can the Taoiseach advise the House what consequences we may yet face of this issue? Did the Cabinet consider these matters this morning and has it received advice from the Minister or the Attorney General?

What are the implications for the sex offenders' register of this afternoon's decision in the wake of the Supreme Court judgment? Will it remain as it is or will one or more individuals, including the man described as "Mr. A", be able to challenge the inclusion of their names on the register?

An Ceann Comhairle

The Deputy's time is concluded.

Caoimhghín Ó Caoláin

The leaders of Fine Gael and the Labour Party voiced their concerns on the issue this afternoon. Can the Taoiseach explain why successive Governments, including a previous coalition of Fine Gael and Labour, failed to act on the recommendation of the Law Reform Commission in 1990 that a defence be allowed of making a genuine mistake about a person's age? Does the Taoiseach accept that if the Law Reform Commission's recommendations had been acted on in 1990, or at any point since, the 1935 law could not have been challenged as it has and we would have its protection today, averting the crisis we now face and the serious concern that exists?

I welcome the Taoiseach's confirmation that the new legislation will seek to protect young boys and girls from sexual predators. Can he confirm that the new law will provide——

An Ceann Comhairle

The Deputy's time is concluded.

Caoimhghín Ó Caoláin

——that it will be illegal to have sex with either a boy or a girl who is below a specified age? Will he assure the House that the age of consent will not be ditched but will be included in new legislation brought before this House? The Sinn Féin Deputies will do everything in their power to facilitate the earliest possible passage of the proposed legislation in the hope it will address all the issues as speedily as possible.

The Taoiseach

A number of points have been raised. Our highest priority is to deal as quickly as we can with this serious issue for the protection of our children. The Deputy asked me about other cases but I cannot pre-empt the decisions of the courts. The Government intends to appeal the Supreme Court's decision. Other cases may arise but we cannot instruct the DPP. We can prepare legislation to deal with issues as they arise but cannot consult or influence the courts, whether on last week's case or any other. I thought everyone understood why there is separation of powers but sometimes I wonder.

There cannot be a miscarriage of justice where a person pleaded guilty to very serious offences. The register will need to be looked at on a case by case basis. I agree with the Deputy on the age of consent.

I recently launched a wide-ranging report of the Law Reform Commission on the subject of conveyancing. The chairperson, Mrs. Justice Catherine McGuinness, said its work involved taking a broad view of various aspects of legislation and putting forward views for consideration. The 1990 report on child sex abuse made a small number of recommendations on criminal law governing sexual offences against children. It also recommended decriminalising homosexuality and many of the enactments in the 1993 Act originated from its recommendations. Other work was done in the Department on the laws of incest and the criminal liability of under age girls and it was decided they should not be changed. In 1997 Deputy O'Donoghue became Minister for Justice, Equality and Law Reform and presented a discussion paper on a number of topical issues concerning the criminal law protection of children against sexual abuse. It discussed the age of consent and the changes the Law Reform Commission had recommended on the defence of making a mistake regarding age. Responses were made to the discussion paper from interested bodies so it is not true that nobody has looked at it since 1930, or 1990. The issues were well aired and debated but decisions were made not to change the law. It does not mean that no changes took place. The Sex Offenders Act 2001 was enacted, followed by legislation to combat trafficking for sexual offences. The Supreme Court has made its judgment and now we must deal with it. It is not true that the report was left on a shelf and not read by anybody.

If the Supreme Court makes a decision that strikes down an Act which we all believed was safe it is a serious issue but that is the way the system works. Now we must properly deal with that Act. Deputy Ó Caoláin did not say this but it is impossible to have another Act ready when one is struck down. The Supreme Court makes a judgment on the basis of fact and following its examination of a case. It studied this case for a year and the recent judgment was the second part of a two-case judgment. We must carefully examine how it arrived at its decision and what it recommends, and we must act accordingly.

The Government considered the matter this morning and the Minister for Justice, Equality and Law Reform has done so practically non-stop since the judgment was made a week ago. The Attorney General has also considered it and has sought counsel. We will deal with it as quickly as possible.

Mr. J. O’Keeffe

The Cabinet cannot agree on how to deal with it.

The Taoiseach

It does not remove all the legislation enacted to deal with anyone who commits serious sexual assaults or aggravated sexual attacks.

Caoimhghín Ó Caoláin

I thank the Taoiseach for his reply. The Sinn Féin Deputies will be happy to facilitate the sitting of the Dáil in the coming week, not to embarrass the Government but because we must.

Is the Taoiseach considering legislation to deal with behaviour other than sex with an underage boy or girl? Should we not include all inappropriate sexual acts and approaches? Will the legislation include the widest possible protection for young people, not only in terms of the understood idea of the sexual act but also in reflecting other activity and approaches? I ask the Taoiseach to confirm he shares the view that the widest possible protection is required and to indicate on behalf of the Minister whether it is his intent to legislate for it.

Does the Taoiseach agree that, in addition to legislation, a raft of other measures which will help to protect vulnerable young people is required? I have in mind educational measures and the need to inculcate greater social responsibility to create a greater awareness of the dangers of alcohol abuse and casual sex. A much more proactive——

An Ceann Comhairle

As the Deputy's time has concluded, I ask him to give way.

Caoimhghín Ó Caoláin

Will the Government, and I ask the Minister to take note, examine the need to protect young people and consider what measures are required to address the worrying growth in human trafficking, which is of concern to citizens and our new brothers and sisters in society?

The Taoiseach

I agree with Deputy Ó Caoláin on a number of points. The human trafficking Bill is being prepared and will come before the House. The broad definition is one of the things with which we must deal and I agree with the point that it more correctly reflects the issue. We have a strong body of legislation and, as the Deputy said, these are serious issues which the House has been addressing. The reason so much legislation on sexual assault, aggravated sexual assault and rape, including the Criminal Law (Rape) (Amendment) Act, has been introduced in the past 15 years was to protect our children and young people. We have a strong base of law, for example, a 14 year penalty can be imposed in cases of sexual assault on a minor and a life term can be imposed if any degree of force is used in an aggravated sexual assault. That anyone would go into court and state that they are guilty of statutory rape is itself an indication of the seriousness of these offences.

All of this is to protect our children. In this particular case we now have an issue that we have to deal with. It is all about protecting our young people so they can move around freely and their parents can understand they are safe. This is the reason we have far tougher sentencing in this area than in other areas. We will have to deal with the issue arising from the Supreme Court decision and examine any knock-on implications it has for any other Acts. It is not just a question of making a few amendments but of looking at its implications for other legislation and we will do that.

The Government and, I am sure, everybody else, want to protect our children and be seen to do so. We are satisfied that we have a strong body of law.

Mr. J. O’Keeffe

The problem is that the Government cannot agree on how to do it.

The Taoiseach

In this instance, we have to amend an Act of which the Supreme Court has struck down one section. Another one or two sections may be at risk. This does not change any of the other Acts. We will do this quickly and efficiently in the interests of our children and their parents. That is the Government's commitment. I thank Deputy Ó Caoláin for his support in enacting this legislation as soon as we have it ready.