Other Questions.

Human Rights Issues.

Emmet Stagg

Ceist:

6 Mr. Stagg asked the Minister for Justice, Equality and Law Reform if his attention has been drawn to the recent report from the Human Rights Commission on the rights of de facto couples, which warned that Ireland could be in breach of international human rights conventions in not making provision for de facto couples; the steps he intends to take to provide full rights for such couples; and if he will make a statement on the matter. [22149/06]

At the invitation of the Human Rights Commission, I participated in the launch of a research report commissioned on the rights ofde facto couples on 12 May 2006. There is no obligation in international human rights conventions to give legal recognition to de facto couples. The research report acknowledges that the European Convention on Human Rights imposes no positive duty on states to provide for the legal recognition of de facto couples generally. The report also states that United Nations instruments do not oblige states to afford de facto couples positive recognition in the form of, for example, a registration scheme.

I previously acknowledged that the question of extending legal recognition to same and opposite sex couples in domestic relationships needs to be addressed. With a view to progressing the issue and with Government approval, I established a working group on domestic partnership and asked it to present an options paper to me by 20 October. The group is charged with considering the categories of partnerships and relationships outside of marriage to which legal recognition might be afforded, consistent with the Constitution. The group will also identify options for the granting of legal recognition to those alternative forms of partnership and the extent to which such recognition could be given. It is my intention to bring proposals for legislative reform to the Government following receipt of the group's report. The Taoiseach has indicated that he intends to progress any such legislative initiative.

One of the group's first actions was to invite submissions from the public and I understand there was a large response from individuals and groups representing a broad spectrum of opinion. This was followed on 26 May by a conference, which I opened and at which I received a copy of the Constitution from some errant members of the Ancient Order of Hibernians.

By express delivery.

The Ancient Order of Hibernians has apologised to me for the incident but is not convinced that the perpetrators were in good standing as members of the organisation.

The Human Rights Commission report will inform the deliberations of the working group, as will the All-Party Oireachtas Committee on the Constitution's report on the family and the deliberations of the Law Reform Commission on the rights and duties of cohabitants.

The Minister does not believe that we are in violation of any international convention. Has he examined Article 8 of the European Convention on Human Rights in the context of the report to the Human Rights Commission? Can he assure the House that we are not in breach of any obligation under that or any other article? Does he accept the need for what the report described as an "overarching statute" in this regard? It is not simply a matter of sorting out property rights but involves wider issues. Has he ruled out the possibility of amending the Constitution?

With regard to the options paper commissioned by the Minister, who is responsible for writing it and what will be its status once it is completed?

The group is chaired by the chairperson of the Legal Aid Board and former Deputy, Ann Colley, and is composed of a high-powered group of people including representatives from the gay and lesbian community and my Department. These issues are being considered with a view to drawing a clear picture of the implications of any particular option.

I have not ruled out constitutional change but the Taoiseach and I are of the opinion that a constitutional amendment of, for example, the definition of the family to include unmarried people, regardless of their sexual orientation, would be extremely divisive and would probably not pass. There is no point in taking a constitutional route and making the best the enemy of the good.

Is the Minister ruling it out as an option?

I am not ruling out any options but the Taoiseach has indicated that the group chaired by Ann Colley should operate within the parameters of the Constitution as it stands because an early change to accommodate a more ambitious plan would not, in the Government's collective judgment, stand a good chance of success at this stage.

Is the Minister aware of the report endorsed by the Equality Authority and the Equality Commission for Northern Ireland on equivalence in promoting equality, which states that while reforms for gay couples do not necessarily need to replicate the measures introduced in the UK, legislation will be required to protect and give effect to equal treatment of transsexual people and lesbian and gay couples under the equivalence requirement? Does he agree that a shortfall exists between the equality protections for lesbian, gay and transsexual people in this State and the protections for these groups in the Six Counties? Does he further agree that, under the equivalence provisions in strand three of the Good Friday Agreement, this Government must introduce human rights and equality provisions for these groups that are at least equivalent to those obtaining in the Six Counties?

I do not agree with the general point made by the Deputy that there must be an equivalence in respect of the arrangements made on both sides of the Border. I do not accept that we must do everything they do or that every human rights initiative taken in the Six Counties, as the Deputy terms it, must be mirrored in this State. This is a constitutional State and we must uphold our Constitution. The people of Northern Ireland do not have access to a written constitution. No citizen in Northern Ireland has the right to have the laws enacted in Westminster struck down on the basis that they conflict with a written constitution. When it comes to equivalence, it is not a question of comparing like with like. The citizens of this State have a more robust and constitutionally understood system for vindicating their rights than the people of Northern Ireland.

I do not accept that, if the United Kingdom Parliament or a Northern Ireland Minister decides to introduce a certain method to deal with a social issue in Northern Ireland, we are obliged under the Good Friday Agreement to follow suit. In the area of civil and political liberties, both sides of the Border share a determination to establish high standards of protection but these standards will not be identical because, if they were, we might as well close this Chamber and ask for direction from Westminster. If that was the case, Deputy Ó Snodaigh's party colleagues might be tempted to take their seats in Westminster.

Deputy Ó Snodaigh did not expect a lecture on that matter.

I did not realise that the Minister disagreed with the Good Friday Agreement.

Sexual Offences.

Joe Costello

Ceist:

7 Mr. Costello asked the Minister for Justice, Equality and Law Reform when the committee on video evidence was established; when it reported to his Department; the action which has been taken based on the report’s recommendations; when he intends to implement section 16 of the Criminal Evidence Act 1992, which provides that a video recording of evidence given by a person under 17 years of age in respect of sexual or violent offences shall be admissible as trial evidence; and if he will make a statement on the matter. [22119/06]

One of the consequences of the judgment of the Supreme Court that section 1(1) of the Criminal Law Amendment Act 1935 is unconstitutional is an increase in the evidential requirements on the prosecution in prosecutions under the Criminal Law (Sexual Offences) Act 2006. As a result, child victims face the prospect of being subjected to adversarial court procedures that may be damaging to them. It is important that the undesirable impact of these developments is alleviated to the greatest extent possible. Section 16 of the Criminal Evidence Act 1992, as amended, makes provision for the video recording of any evidence given in respect of a sexual offence or an act involving violence by a person under 17 years of age. The relevant subsection was commenced in 1993.

Section 16 also makes provision for the video recording of a statement during an interview with a member of the Garda Síochána, or any other person who is competent for the purpose, made by a person under 14 years, in respect of whom a sexual offence or an offence involving violence is alleged to have been committed. It provides that such a video recording shall be admissible at a trial as evidence, provided the person whose statement was video recorded is available at the trial for cross examination. It is important to remember that proviso. It does not eliminate the issue of cross-examination.

My predecessor as Minister for Justice, Equality and Law Reform established a committee in 1998 to draw up guidelines for persons involved in video recording interviews by a member of the Garda Síochána with a complainant aged under 14 years of age or with an intellectual disability in relation to a sexual and-or violent offence. This committee subsequently submitted a report in 2003 entitled Good Practice Guidelines with related recommendations. The guidelines cover a number of areas and made a number of recommendations. My Department carried out its own examination of the report and asked the Health Service Executive for its views on the most effective mechanisms to oversee the implementation of the guidelines and associated recommendations, including the issues of how a joint national training programme for people involved might be established. One of our problems with this is that the quality, ethics and training of the people taking the original statement must be of the highest standard, otherwise they will be accused of prompting or coaching the child and the system would be brought into disrepute. The Health Service Executive has confirmed to the Department of Health and Children and my Department that it has established a task group which is working on this, will issue its first report within the next week and will finalise its work on this matter shortly thereafter. I regret the delay in coming forward with this and it is an area where greater urgency could have been shown by all involved.

I welcome the Minister's last comment acknowledging undue delay, which is a great pity. The Minister responded to my colleague Deputy McManus in November 2005 in virtually the same form he gave to the Dáil last week, that the Department had asked the HSE for its views and told the House that the HSE had indicated it was examining the matter thoroughly and would revert to the Department shortly. That was last November. Last week the Minister told the House he telephoned the HSE. I presume this was to put pressure on them and find out what had happened since last November. I understand we will have an interim report within a week. We need to get procedures and mechanisms in place. Does the Minister accept that?

The Minister made great play last week of introducing the Bill into the House last Friday of this new, adversarial court procedure that is now being produced, in which young girls will be asked about the length of their skirts and so on. Does the Minister accept there was always the potential for an adversarial court procedure to arise given the traumatic nature of cross-examination in such cases?

Does the Minister accept that section 5 of the Bill that has been enacted worsens the situation because it opens the anomaly whereby the girl would have to have had penetrative sex in order to be innocent? One can imagine the cross-examination that will flow from that. Under the provision enacted into law by these Houses attempted sex would not be an offence for the girl in those circumstance and this would open her to greater cross-examination. Does the Minister accept we will have to revert to this?

Having accepted the urgency, can the Minister give us a timeframe for establishing the sort of video evidence that has been agreed since the Criminal Evidence Act 1992 was enacted?

I will regard it as a matter of extreme urgency and when I receive the first report from the HSE next week I will ensure I have a final report as soon as possible from it. In the meantime I will look at what my Department should do rather than approaching this on a linear basis and waiting for them to pass something down.

What is the idea of a phased report?

I do not know. Last week I had little time for reflection, as the Deputies will understand, but something has occurred to me on a growing basis. An age category of 15 and 16 year old children was provided for in section 3 of this Bill and in section 2 of the 1935 Act and a separate offence was created for them. Suppose that, under the honest belief defence, a jury listens to an accused claim there was no conversation about the victim's age and that he or she believed the child was 17, not 15 or 16 years old. If that is the only evidence on the issue, and if it is agreed there was no extraneous evidence from which actual knowledge could be imputed to the accused, any of us, imagining ourselves as jurors, required to acquit unless the case was proved beyond reasonable doubt, would be forced to dig hard and deep before contemplating convicting a person unless there was something egregious or manifestly incredible about that evidence. In addition to the new cross-examination issues and new vagueness on 13, 14 and 15 year olds for one offence and 15 and 16 year olds for another offence, we must also face the fact that the 15 and 16 year old age category will be more difficult to prosecute in the case of total strangers. A curious by-product of where we are being driven by the court decision is that a contemporary or school pal would be imputed with more knowledge of the age of a young girl than a 24 year old man who met her casually. When the dust settles and everybody examines it again, it will not be seen as a step forward.

The Bill was wrong.

The change in the law that was forced on us has not been a step forward.

That change was not forced.

It was. We had stern rules — the Law Reform Commission report of 1990 called them harsh but I call them stern — that any adult interfering with a young person at an age or in a category prohibited by law took the entire risk. Now the risk is not borne exclusively by the accused, who can wriggle out of it. It will have some strange effects in individual cases including the fact that people who know each other and are friends will be in a worse position than strangers, and that is unacceptable to me.

We need to go back to all this.

The Supreme Court was entitled to make that decision and we must live by it. The fact that video evidencing was not available after such a long time under consideration by various Departments caused major concern last week when the Minister had to deal with the situation. The public was worried about barristers interrogating very young people. People cannot understand why it takes so long for Ministers and the Government to implement decisions. It is not a sign of good, decisive Government if these events continue to happen. There is a general perception that we must have multiple reports before we reach a decision. Can the Minister provide an accurate timescale for when video conferencing will be available?

I accept the Deputy's criticisms but I regard the matter as one of great urgency to bring the matter to a conclusion. The 1992 Act made the introduction of this material contingent on the availability of the person for cross-examination. It is not an alternative to cross-examination if an absolute precondition of the introduction of such evidence is that the person can be cross-examined later. Nonetheless, it is a good idea.

Will it be in place this year?

I hope so.

Deportation Orders.

Ruairí Quinn

Ceist:

8 Mr. Quinn asked the Minister for Justice, Equality and Law Reform the number of occasions since June 2002 on which aircraft have been chartered to facilitate the deportation of persons from this country; the cost involved in such charters; the number of persons deported in this way; the number who were children; the overall costs involved, including Garda man hours; and if he will make a statement on the matter. [22144/06]

Since January 2002, 23 charter flights have been engaged for the purposes of removing persons illegally residing in the State. Some 723 persons were removed in this way at a total cost of €3,150,073. Details of these charter flights are set out in the table.

No. of non-nationals removed

Date

Destination

Adults

Minors

Total

Cost (Euro)

9 January 2002

Algeria

2

Nil

2

23,490

28 March 2002

Nigeria

6

Nil

6

190,000

14 November 2002

Nigeria

Information not readily available

Information not readily available

12*

151,500

18 November 2003

Romania and Moldova

Information not readily available

Information not readily available

24*

92,490

28 November 2003

Romania and Bulgaria

Information not readily available

Information not readily available

20*

27,800

12 February 2004

Romania

Information not readily available

Information not readily available

62*

93,609

20 February 2004

Gambia

1

Nil

1

50,200

31 March 2004

Romania

49

4

53

71,590

6 April 2004

Nigeria

26

3

29

146,500

26 August 2004

Nigeria

24

1

25

248,610

17 November 2004

Romania and Moldova

56

10

66

82,700

15 December 2004

Romania and Moldova

39

2

41

82,700

15 March 2005

Nigeria

26

9

35

265,000

1 June 2005

Romania

50

8

58

84,720

5 July 2005

Nigeria

30

16

46

248,300

13 September 2005

Romania and Moldova

46

5

51

87,270

18 October 2005

Nigeria

23

15

38

243,300

8 December 2005

Nigeria

17

2

19

238,850

17 January 2006

Romania and Moldova

42

2

44

91,255

27 January 2006

Spain — Dublin II Regulation Transfer

1

Nil

1

43,300

21 February 2006

China

13

Nil

13

255,539

4 April 2006

Nigeria

23

6

29

242,050

15 May 2006

Romania

44

4

48

89,300

*Note (i) A breakdown of the numbers deported between adults and minors is not readily available for these flights.

The costs do not include Garda expensesassociated with these removal operations. Given the wide range of immigration duties performed by the Garda Síochána and the Garda National Immigration Bureau, GNIB, it is not possible to identify the particular pay and overtime costs incurred in these charter flights. Charter flights involve a lower ratio of Garda escorts to deportees than is the case using conventional scheduled flights, which require more gardaí per individual because other passengers are involved. The number of escorting gardaí on each flight varies and is dependent on a prior risk assessment of each removal operation carried out by the GNIB.

There are two main categories of repatriation charter flights. Smaller charters are organised to remove disruptive persons whom commercial airlines will not take on account of previous disruptive behaviour on board aircraft, and larger charters are organised to return those to destinations with a high degree of——

Popularity.

——deportations. There is a new EU initiative on sharing the costs of flights and co-operation in organising such flights.

The figures are often disappointing to the GNIB and one of the problems is that those who are arrested to be deported gain access to lawyers who commence judicial review proceedings. Members may have heard about a family making an application to the High Court for judicial review on the basis that some members suffered from epilepsy and better medical treatment is available in Ireland than Romania. In that instance, space on the plane was left empty. Happily, the High Court has decided that the grounds were invalid. One may schedule a flight for a certain number of people and then discover that a considerable fraction of them is excused at the last moment due to judicial reviews and injunction proceedings. The Department is considering sending a letter, which we hope will be judicially supported, to the effect that any argument should be made immediately and that any application for judicial review at the 11th hour will not be accepted.

What are the criteria used to determine those who should be deported on a charter flight and those who should be deported on a conventional flight? Is cost analysis carried out and taken into account in this determination?

The Minister was unable to give the breakdown between adults and minors in a previous response to a similar question regarding flights in 2003 and 2004. Why does he not know how many adults and minors are on any given flight? Surely such fundamental information would be recorded before any individual is put on a flight out of the jurisdiction.

It is strange that people were deported without their being recorded. Perhaps they came to Ireland at the age of 16 and left at 19——

In terms of the determination, the criteria for a minor would be entirely different. The file exists within the Department and I find it numbing that it is not available to the House.

I would not use the term "numbing", but I find it strange. I ask the Deputy not to be numbed by this information.

The Minister would like me to be numbed more often.

I agree the information should be available but I note from the information in the table that no clarification has been added. Deputy Howlin asked how to decide between a commercial and a charter flight. Depending on the nature of a passenger on a commercial flight, a garda may have to be handcuffed, or in close proximity, to the passenger.

Is it in case the passenger makes a run for it?

It is in case he or she becomes disruptive on the plane. One immigration officer had his arm broken by a person resisting deportation. Disruptive passengers may necessitate flights to be grounded and arrests made. The views of other passengers must be taken into account, especially on long-haul flights, if a significantly disruptive passenger is on a plane. It is not an exact science but the number of supervising gardaí must increase in the case of a commercial flight. There must be a ratio of two or three to one to prevent an outburst or a breach of the peace on the plane. Commercial carriers are not very keen on such passengers so judgment must be used. Economic factors are taken into account and perhaps there is a graph that shows when a commercial flight is feasible.

The majority of people who finish the asylum process are requested to leave voluntarily. They are offered arrangements to return home, with the assistance of the International Organisation of Migration. Everyone who is brought to Dublin Airport in custody to be sent home on a charter flight has been offered and has refused the opportunity to return to his or her country on an ordinary flight with assistance from the Irish State. Everyone is well treated and is offered the more civilised and dignified option. If we did not have a system of deportation our law would be a mockery.

There is little information on what happens to these people when they return to their country of origin. Various commitments were made by the Minister and his predecessor to ensure these people are well treated on their return to their home country. Will the Minister tell us about information received regarding what happens to these individuals once they return and the procedures in place to ensure that the State knows what happens to such individuals on their return?

Any person in danger of violence etc. in the host country is entitled to resist deportation onrefoulement grounds. If somebody is brought from Dublin to Lagos, for example, by airplane, arrangements are made by an advanced party of gardaí for reception and processing in Lagos. Arrangements are made for overnight accommodation for such people if they so wish. After that, these people are in their home country and it is their duty to look after themselves. The State’s obligation does not extend to monitoring these people or doing a follow-up.

Anybody who thinks the resources of the Exchequer should be spent finding out what happens to people who came here but remained illegally after being asked to go home and that we should make it our business to monitor what happened to these people after they returned home should know that is not a reasonable use of manpower or taxpayers' resources.

We have deported people who have just reached the age of majority to countries such as Nigeria. I put it to the Minister that there must be some duty of care to find out what happens to these individuals, particularly when they do not have family in their own country. Many young people, on reaching the age of majority, have been deported. There should be some duty of care by the State to ensure we know what happens to these people.

I ask the Minister to be brief.

My experience is that 16 year olds and 17 year olds who come in from a number of these states, and one state in particular, have crossed half the world to get here. Very frequently the account given shows a considerable degree of independence of mind on their part. Their histories show that these are functioning people with a good appreciation of their whereabouts etc.

Once a person is of full age and back in one's own country, it is not the Irish taxpayers' duty to further assist that person. A person in those circumstances has already turned down an offer by the State of an air fare home at a time of their own choosing. In those circumstances, the services of the International Organisation for Migration would be available to such people on their arrival home, but these people have turned that down. The Deputy should remember that nobody gets on to a charter flight in this regard who has not turned down a generous repatriation package from the State to go home unescorted in their own time on a commercial flight. In those circumstances, the people are in a position to have contacts awaiting them on arrival.

Independent Inquiries.

Aengus Ó Snodaigh

Ceist:

9 Aengus Ó Snodaigh asked the Minister for Justice, Equality and Law Reform the status of the inquiry into the death of a person (details supplied) while in Garda custody in Clonmel; and if he will make a statement on the matter. [22192/06]

The independent statutory inquiry process established by me pursuant to section 12 of the Dublin Police Act 1924, as applied and amended, has been under way for some time following the appointment of Mr. Hugh Hartnett, SC, on 14 September 2005 to conduct it. Mr. Hartnett decided that the inquiry was to be held in private and he is not, under his terms of reference, required to report to me on a regular basis on any of its aspects. He is required to report to me with his findings and conclusions, which I intend to publish unless there are reasons to the contrary.

I have had no indication from either Mr. Hartnett or any other party that substantial progress is not being made. When last I heard of the progress, approximately 90 witnesses had given oral evidence, and the inquiry was heading to a conclusion. It is Mr. Hartnett's proposal to have the inquiry concluded by the summer.

The Deputy has one minute until the Adjournment.

I will be brief. Is the Minister aware of the harassment of Mr. Brian Rossiter's father, Pat Rossiter? This seems to confirm a practice, long established, whereby gardaí engage in serious harassment of people who are brave enough to make complaints against the Garda. Is the Minister concerned about this?

I am aware of some press coverage of the kind the Deputy referred to, and some of it has not been completely fair. As I understand it, the particular incident coming before the District Court occurred at a time before there was public controversy relating to the Brian Rossiter case. That was not brought to the public's attention in the press reportage. The public dimension to the case came after the incident involving Mr. Rossiter's father. I do not want to comment further as I do not know the individual facts. In so far as it is relevant, the incident will be fully taken into account.

Written Answers follow Adjournment Debate.