I welcome the Minister of State, Deputy Barry Andrews. I ask him to address the committee for the first time in his new position.
Absolute and Strict Liability Submissions: Discussion.
I thank the Chairman. Any decision by the joint committee to make its position clear at this early stage of its proceedings has the potential to cause it unnecessary difficulties in the future. A number of submissions from health professionals, child psychologists and psychiatrists have yet to be heard. I presume they will outline their professional views on issues such as the capacity of a child to take certain actions. Senator Corrigan's submission which was informed by her experience and expertise suggested our deliberations may be influenced by what such persons have to say. We will hear submissions from other interested parties. We want to know what they have to say. There is a danger that the committee will hinder the debate unnecessarily if it draws a line in the sand at this early stage in the proceedings.
I will outline the Government's position. It is clear that there are three parties in Government. I propose to speak to four of the key Ministers and the Attorney General about some of the key issues which have been raised so far. We are here to talk about the submissions on absolute and strict liability which have been received. The Government wants the committee to reach a consensus. That is why it established it. The committee needs to ensure it does not hinder proper debate by taking a non-negotiable position. That is something we have to bear in mind.
The net issue is whether there will be a zone of absolute protection. I cannot say at this stage that the Government has taken a position on that issue. Its previous position was outlined in the report of the Joint Committee on Child Protection published in 2006. That will remain the position until the committee concludes its deliberations. The comprehensive submissions the Government has received to date focus on legal issues. We need to move into other areas. We need to listen to interested bodies other than those with an interest in legal issues. I cannot fully set out the Government's position, as it has yet to reach a position I can present to the committee as definitive. I look forward to reading the submissions yet to be received. The net issue is how we can balance the rights of the child and those of the accused in a criminal trial. We hope we can achieve as much as possible through legislation, but that remains to be seen. I have given a brief outline of the position.
I will give a verbal report. I am conscious of the importance of the issues which have been before the joint committee in recent weeks. The Fianna Fáil group has met on a number of occasions to consider all the issues, particularly those before the committee today. However, we have not yet arrived at a definitive conclusion. The group considers that it would be premature to adopt a definitive position at this early stage, before the committee has heard the remaining presentations to be made. I am thinking, in particular, about the presentations we are scheduled to hear from psychologists and psychiatrists next week. It is obvious that such persons have particular expertise on children to impart to the committee. However, I can put a number of observations before it today.
The Fianna Fáil Party is committed to the creation of a zone of absolute liability. It acknowledges that there is a clear conflict between the constitutional right of the child to his or her bodily integrity and the right of the accused to a fair trial and his or her good name. I was impressed by the argument presented by Professor Finbarr McAuley at this forum. He said one's failure to ensure one's sexual partner was an adult amounted to a failure in an essential moral obligation. He suggested such a person could not be said to possess an innocent mind. That is something we have teased out on a number of occasions. The Fianna Fáil group was impressed by Professor McAuley's sentiments. His view is the same as that taken on board in the Joint Committee on Child Protection's report in 2006 which was the product of an extensive process of deliberation. The Fianna Fáil group is anxious to ensure as many as possible of the issues which come before the joint committee are addressed by means of legislation, if possible.
I have listened with astonishment and disgust to what has been said so far. We have been deliberating for six months. The joint committee had a work ethic under the previous Minister of State with responsibility for children and the previous Minister for Justice, Equality and Law Reform. That work ethic was designed to provide solutions to problems across party lines. For some weeks it had been agreed that each party would have produced specific proposals by now, dealing with the issues of children at risk of sexual exploitation, adults having sexual relations with under-age children and the substance of the legislation required in this area. It had been agreed that each party's proposals would set out what it deemed to be necessary in the legislative and constitutional contexts. This issue has been the subject of weeks of discussion. Presentations have been made by the counsel attached to the committee and other persons called to give evidence at this forum. Submissions have been received from a variety of groups with different viewpoints, including children's groups such as the Children's Rights Alliance. Extensive written submissions have been received from other groupings dealing with children. A letter from a variety of groups, published in a newspaper a few days ago, specifically urged the committee to deal with this issue with some speed.
With all due respect, I do not take seriously what the Minister of State said. As he is new - he has not been part of the committee's discussions - I am willing to be charitable to a limited degree. However, he has the services of the Office of the Minister for Children and Youth Affairs and the Department of Justice, Equality and Law Reform, both of which have been involved in this process, to back him up. He seems to be under the illusion that the committee is some sort of talking shop. He also seems to think the Government will reach whatever conclusions it wants behind the scenes, before eventually telling us what legislation it will enact. By some strange coincidence, both he and Deputy Ó Fearghaíl suggested we should wait to hear the oral submissions of psychiatrists and psychologists. I do not seriously believe they think the ploy they are using which amounts to no more than a piece of political play-acting will work. The committee has been engaged in months of discussion without such a suggestion being made on this issue. It was originally intended that specific proposals would be brought before it three weeks ago. The only reason the matter was postponed until today was to give the new Minister of State with responsibility for children and the new Minister for Justice, Equality and Law Reform who should be here if the issue was being taken seriously, an opportunity to consider the work done by their predecessors and make a presentation. The Fine Gael Party--
I am sorry; I do not wish to cut across the Deputy but I must explain that the Minister for Justice, Equality and Law Reform, Deputy Dermot Ahern, is attending the Select Committee on Justice, Equality, Defence and Women's Rights to discuss the Estimates for his Department. That is his parliamentary duty.
As the Chairman and I well know, when the Estimates for any Department are organised, they are discussed by a committee at the request of the relevant Minister on a particular day. It was within--
Perhaps I can be helpful on that point.
The Minister of State should allow me to conclude. I have been attending meetings for six months, he has only arrived in the past few weeks and I did not interrupt him when he was speaking. I insist that I be allowed to complete what I have to say uninterrupted, as I allowed the two previous speakers to do. The Minister of State is welcome to respond but I insist that I be allowed to finish. I cannot tell the committee how angry I am at the manner in which the meeting is developing.
I can explain the position.
If the Minister for Justice, Equality and Law Reform was taking the committee seriously, he would not have conveniently ordered the justice Estimates to be discussed today by the Select Committee on Justice, Equality, Defence and Women's Rights. We all know how the House operates and how business can be ordered. It is extraordinarily convenient that the Minister is not here. The committee has organised--
Is the Deputy saying he deliberately choreographed the meeting?
Yes.
That is the Deputy's accusation.
It is my view that he deliberately choreographed the meeting in order that he could not be here.
That is nonsense.
That is the reality because this meeting has been organised for a long time. The Fine Gael Party takes this issue seriously. We believe under-age children in the community are at risk from sexual predators and that the laws enacted by the former Minister for Justice, Equality and Law Reform following on from the Supreme Court's decision do not provide adequate protection for children and hamstring the Director of Public Prosecutions in taking prosecutions. The issue should be urgently addressed.
We have agreed to be co-operative at this committee to produce a constructive solution but there must be a reasonable focus within the committee. What we cannot do is make decisions and then go back on them, which is what we have been doing for some weeks. I was willing to be reasonable until this point. I was willing to take the view that new Ministers needed time to read into their briefs but the officials sitting behind the Minister of State have been here since the start of these meetings. The Taoiseach was entitled to choose a Minister of State who was not a former member of the committee and who was not privy to what was happening and to change the Minister for Justice, Equality and Law Reform, but I have to ask myself what are we doing here on a weekly basis. Is the committee becoming a theatre for political psychotherapy?
With all due respect, the Chairman is aware that it was arranged that each party grouping would today make its presentation of its substantive proposals to deal with the particular issue of whether we should provide for an absolute zone of protection for children in the light of our deliberations and the submissions we have heard. That is what was ordered for today. The Fine Gael Party did the work and we presented our proposals to the Minister on 13 May. It is not a question of anything being written on tablets of stone. As the Minister of State suggested, if the Government comes up with a proposal, everyone will take up a position. What has to happen in the light of the deliberations that have occurred is that each grouping has to state what its position is and whether it has reached conclusions, individually or collectively. We will then see if there is a consensus. It may be that there is a consensus at the start but if there is not, we will work in the interests of children to produce a solution on the issue. As we go through each individual issue, we will have to say what it is we have concluded and then see if the committee can reach agreement. That is the way committees work.
I deplore the fact that after this number of months the Minister and the Fianna Fáil group lack the capacity and the commitment to come up with a specific proposal. I have serious reservations as to where the Government intends going with the committee. I am developing a concern that it will not finish its work by next November and that it will be just a talking shop.
The Deputy is repeating himself. It would be helpful if I could intervene to clarify the matter.
This is a talking shop.
It is because the Deputy is repeating himself.
Whenever an issue arises in regard to children, we are told it is being considered by the committee. The Minister of State is already administering a Department which does not know what is happening in the child protection area.
The Deputy is confusing the issues. Let us stick to the issues.
The Minister of State, apparently, lacks the capacity to produce proposals. The proposals of the Fine Gael group were circulated three weeks ago. In the light of what is being said, I see no purpose in going through them in any detail because clearly no one intends to make a decision. We are wasting our time here this afternoon.
I do not assume that because the Government parties have not tabled proposals today they do not intend doing so. That may be misguided or naive on my part but I am not prepared to make that assumption. My party and I are prepared to participate fully in the work of the committee in good faith on the basis that all of the other members will approach it in the same way. It is like anything else, one can be proven to be wrong but from what I have seen, heard or observed, I do not believe it is the case that anybody on the committee, including on the Government side, is acting in bad faith, as appears to be suggested by Deputy Shatter. Perhaps he is right and I am wrong but I do not believe there is evidence before us to make that assumption and I am not prepared to go along with or support that point of view because I do not share it.
I agree with Deputy Shatter, however, that progress has to be made at the committee. We have to set benchmarks because the summer will come and go and November will be upon us. The Chairman is much more experienced than I in managing such complex business at a committee. It will be as much for her as for the rest of us to work collectively to ensure we make the deadline that we have been set. Parties must have an opportunity to deal with and wrestle with the complexity of the issues before us. It is possible to meet the November deadline and I earnestly hope we will. I hope the Minister of State will come back to us but nothing in what he said suggested he was thinking of any slippage in that regard. However, I would like him to clarify the matter because November is six months away. Perhaps we will not be able to do it but it should be possible for us to meet the deadline. I would not be happy if there were a suggestion that we would not do so. As long as we are confident that we are organising our business in order to meet the November deadline, it is not absolutely essential for people to take to their corner of the ring today but I am open to argument on that point. We can manage this together collectively in how we organise our business.
I understand Deputy Shatter's frustration. In fairness to him, he is correct that there was agreement that position papers would be produced. It is no good for a committee member to say this because when one has an opportunity one takes it and if one does not, one cannot say afterwards one did not agree with it. I was not here on the day in question - I am sure my colleague was - but I had some doubts about the wisdom of that approach in terms of people being required to outline their position.
The agreement was that the positions would be outlined verbally or in writing.
I am around long enough to know that just because one was not present when a decision was made it is still binding. A decision was made in good faith and if papers or outlines are not produced today, there has to be some method for us to agree to some benchmarks in the coming weeks for how we will manage our business. I do not disagree with the Minister of State's statement that we should hear from the authors of some of the submissions I have read in the past few weeks. I would like the opportunity to engage with them before I conclude on some of these issues. As others have stated, the more one reads, the more difficult the issue appears. However, we cannot be here forever and the complexity of the issue cannot be allowed to delay our proceedings indefinitely. We must come to terms with it.
I believe the Minister when he says he wants to reach consensus. I hope the Government is not resiling from this view, as has been suggested. I hope the suggestion is not correct and I do not perceive it to be so. If I believed it was, I would be just as frustrated as Deputy Shatter. I am prepared to maintain my position in good faith, unless something is said or done that changes it. If we are still here in August, September or October looking at each other with our arms folded, there will be a serious question mark against our approach to our business. That the papers are not being produced today is not an indication to this effect.
The Labour Party has prepared a draft position paper which I have with me. I will be happy to outline its content--
If the Senator wishes.
--if that is how the committee wishes to proceed today. However, given that there will not be any other written submissions made today, I do not propose to make one.
The Senator may make it orally.
While there are three parties in government, my parliamentary party has not yet had an opportunity to have a full discussion on the issues involved. I have a draft position paper and Deputy Howlin and I are sufficiently confident to discuss it with the committee, but we would not mind having another week in order to have a full debate thereon with our parliamentary party. That would facilitate the Labour Party.
While the Senator has an outline position paper, it has yet to be presented at a meeting of his parliamentary party. His proposal that it first be discussed at such a meeting sounds reasonable. Perhaps he will present his paper during the week after the Lisbon treaty referendum or the week immediately thereafter.
Without any difficulty.
I expect that will be accepted by the committee.
Senator White should not have made the assumption that no other member--
I was trying to catch his eye to point out--
Sorry, I am not referring to the Chairman's response but stating Senator White should not have made the assumption that no other member would offer a written text today. I am prepared to do so.
I apologise.
I indicated previously that I would work towards it.
The Deputy did.
I have indicated on a number of occasions and repeat today that the purpose of our being here has been and continues to be to work towards consensus among all the parties represented at this committee. That is my honourable intent as a member.
As a member of a small party with myriad responsibilities, I have found it impossible to attend on a continuous basis, for which I apologise.
I understand.
It is just not always practical. I am very anxious that we have representation, directly or in support, as the occasion presents.
I will make a couple of introductory points before offering my views. I will offer them in the same format as presented by Deputy Shatter, that is, in letter format. I will leave my documentation for distribution among the members at the leisure of the Chairman and the secretariat.
I only finished drafting the text before entering the Dáil Chamber earlier. Therefore, any errors therein are mine and mine alone. It is important that it be noted by other members, for whom it may not be obvious, that I am not legally trained. The drafting of my document presented a difficult challenge. There is a disparity between those members of the committee who are legally trained and those who are not, of which cognisance needs to be taken. It is not like discussing issues in the Dáil Chamber in that the issue before us is very intense and complex. I have no doubt but that everybody is approaching it with serious intent and in good faith.
I will use the letter format and what I have to offer is not set in stone. That submissions are not set in stone is the only point made by Deputy Shatter with which I fully agree, although I do not wish to discount any of his other points. If what the other members and I have to say were set in stone, what purpose would we serve?
We would fold our tents.
We would fold our tents and go our separate ways. What I am offering is not the definitive position of Sinn Féin. We are here to participate, to be convinced and to persuade. All these actions are required in coming to what is, to all intents and purposes, a negotiation. On reading my letter, I will leave the text with the Chairman:
As promised and for the purpose of Committee deliberations, I detail below the Sinn Féin proposals on the principles that we believe should guide the drafting of new legislation that would incorporate offences of strict liability.
Sinn Féin has deliberated on the submissions to the Committee, both written and oral, and the various suggestions that were made by Committee members when formulating our proposals for consideration by the Committee.
Sinn Féin proposes that any new legislation regarding strict liability offences incorporate the following principles;
- that the Bill to amend the Constitution should limit strict liability offences to specifically sexual offences involving persons in a position of authority over a child under the age of consent for example, persons in loco parentis, a teacher or other person involved in education or training, sports coach or child minder/babysitter, where there can be no issue of mistake of fact as to the age of their charge.
- that provision for robust protections for all vulnerable child witnesses in court proceedings based on existing Scottish laws be implemented and allow the courts to appoint a special commissioner to take evidence from child witnesses.
- that the Bill to amend the Constitution should have inserted a provision stating that it is a constitutional imperative to consider the child's best interests as paramount in all actions affecting children.
- that a defence of “reasonably held” and “genuinely believed” mistake of fact as to age should be available in respect of sexual offences except to those in positions of authority over a child, where both subjective and objective criteria must be met for this to be valid.
Strict Liability Offences
‘Strict Liability Offences' are offences that are independent of wrongful intent or negligence. Generally under criminal law strict liability offences relate only to summary offences triable in the District Court. (i.e. certain road traffic offences or littering offences etc). Due to their nature they do not require the same procedures as more serious offences. Serious offences to which heavy penalties apply require proof of guilty intent or negligence (i.e. mens rea) on the part of the accused.
Proposition 5 of the Twenty Eighth Amendment to the Constitution Bill 2007 [I am not referring to the Lisbon treaty] allows the Oireachtas to introduce any strict liability offences relating to children up to the age of 18. As this provision is not limited to sexual offences it is problematic and risks resulting in serious miscarriages of Justice.
We understand that the purpose of the denial of the defence of genuine mistake of age is to spare children the ordeal of cross-examination which that defence might entail and we support this purpose.
However, we are concerned that due consideration has not been given to whether such a Constitutional change is proportionate and absolutely necessary, given the potential for grave injustice that it entails. For example, [and this is my major concern on which I have reflected previously] if the age of consent for sexual intercourse is set by the Oireachtas at 16, a situation may arise where a 15 year old and an 18 year old who may have met in a pub or night-club (where the legal minimum age for serving alcohol and subsequent entry to the venue is 18) have consensual sex where the 15 year old has claimed to be 18.
Likewise, teenagers under the legal age of consent may engage in consensual sexual activity and be criminalised as a result. In particular we hold that the current situation whereby, for example, a 16 year old boy who has consensual sexual relations with a 16 year old girl is guilty of a crime is untenable. Sexual assault and exploitation involve an abuse of power. The relevant criminal law must be amended to distinguish between that and the consensual sexual activity between young people where no such abuse of power occurs. Unnecessarily criminalising children flies in the face of the most basic guiding child protection principles.
Persons in positions of authority
We believe the Bill should be amended to limit strict liability offences to specifically sexual offences involving persons in a position of authority only. A person in a position of authority over a child e.g. a teacher, sports coach or baby sitter can be under no illusions as to the real age of their charge - hence the defence of mistake of fact as to age will not be applicable.
In addition to this, provisions for robust protection of all vulnerable child witnesses in court proceedings based on existing Scottish laws must be introduced. Introduction of such protections would allow the courts to appoint a special commissioner to take evidence from child witnesses.
It is preferable to protect children through the insertion of a constitutional imperative to consider the child's best interests as being paramount in all actions affecting children. This would allow the courts to prevent the cross-examination of a child except where they consider it absolutely necessary. This would also ensure that the office of the Director of Public Prosecutions is constitutionally obliged to consider the best interests of children when taking proceedings.
The Irish Council of Civil Liberties and the Irish Family Planning Association have recommended that the provision be restricted to persons in a position of authority over a child. [I cite two examples]
Supreme Court decision in Re: Employment Equality Bill Hardiman J. said:
"I cannot regard a provision which criminalises and exposes to a maximum sentence of life imprisonment a person without mental guilt as respecting the liberty or the dignity of the individual or as meeting the obligation imposed on the State by Article 40.3.1o of the Constitution: The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
In 1990 the Law Reform Commission recommended that the defence of a "reasonably held" and "genuinely believed" mistake of age should be available in respect of sexual offences except to persons in a position of authority over a child. In our view both the subjective (genuinely believed) and the objective (reasonably held) criteria must be met for this defence to be valid.
Sinn Féin is currently examining other issues related to the work of the committee, and I speak specifically about the age of consent, where there is a fairly intense debate. I hope colleagues will appreciate that I represent a party organised throughout the island of Ireland. It is not a question of just bringing on board my small cadre of colleagues in the Dáil and in the Seanad. It is a much wider engagement and there are many other competing issues for the time of all concerned. We will bring forward proposals on the other issues to which I referred in due course. It is a work in progress. I look forward to discussing the proposals of the Government and the other parties during the course of this committee's ongoing deliberations, in which I will be a happy participant.
Thank you for giving us an update on your party's position. I know that you will give that letter to me. The secretary will then distribute it.
I have to rebut one comment by Deputy Shatter, which is the comment on the Minister. I am not here to wave a flag for him, but he is dealing with the Estimates at the Select Committee on Justice, Equality, Defence and Women's Rights. I do not know who arranged it, but they are on tonight. I am quite sure it was not done in a malicious sense.
With all due respect, we all know how matters are ordered in this House and in committees. The Minister could have chosen any day this week or next week that did not coincide with a meeting of this committee. I do not accept that this committee is being treated in good faith by the Government. What the Minister of State said about the office of the Attorney General is utterly spurious. This committee has recruited four excellent members of the Bar Library at great public expense to advise us on these issues. The office of the Attorney General should not have to second guess what this committee does. We should reproduce a report ultimately. We have two counsel here who are expert in this area of criminal law and that is not a basis for the Government not to produce its proposals today.
I do not accept that the Minister is acting in good faith by not being here. He could have organised the meeting to deal with the Estimates at any other time, but not at a time that coincides with this committee.
That is the fourth time you have said that.
I am sticking to that view.
You may stick to it, but you may not keep repeating it.
I will repeat it as frequently as I wish.
There is no point in you repeating it. I have my point of view and you do not agree.
I suggest that you chair the meeting and not make partisan comments.
I am chairing the meeting, but I am entitled to give my point of view.
You are defending a party colleague's unacceptable conduct.
You do not have to take the floor on every occasion. We all listen to you with great respect, but we do not have to hang on your every word at every minute.
And we do not have to be treated with contempt, which is what is now happening.
May I speak?
You may, with pleasure.
Thank you. I took very grave exception when you used the word "disgust". We should do our business in a spirit of co-operation so that we can reach the proper conclusions. The matter is far too serious for anybody to decide that we must have it, or that we must do it. I regret that you used the word "disgust". I do not think that anybody treats this committee in that fashion. We all may be very clever and we all have ideas. We may not be as able to express them as publicly as others, but that does not take from what is in our mind about matters. Having spoken to members from all parties here, I know that everybody takes this issue seriously. We are not engaged in political psychotherapy, which is a favourite phrase of yours. You have said it about nine times over several meetings. It is a catch phrase which sounds great. Alliteration is always good for a quotation, but it is not how we regard ourselves. People are far too busy in their lives to engage in that kind of conversation.
Everybody wishes to bring things to a satisfactory, and if possible, a consensual conclusion.The Minister of State, Deputy Ó Fearghaíl and Senator White asked for a few weeks more after the Lisbon treaty vote during which they would discuss the issue at their parliamentary party meetings. I am satisfied with this. Deputy Ó Fearghaíl will answer for my party but all groupings must bring issues to their parliamentary party meetings, which is generally the way matters operate. I am certainly willing to give those who have requested it further time to come to further conclusions.
I am taken by Deputy Ó Caoláin's point that what he has put in print is not written in stone and that as he listens and reflects, matters may change. If they do, he will come forward, as will others, with a point of view.
I regret very much that a note of distinct antipathy has crept into proceedings today. I do not in any way wish to preside over such acerbic remarks. Deputy Shatter has been very good. He has done his work and brought his party with him, or it has brought him with it - that is their business. Nevertheless, the Deputy presented his case in writing to me some weeks ago and it was passed on to everybody - I certainly saw it in The Irish Times two days later. I commend the Deputy for his celerity in dealing with the matter in the way he did.
We have all been thinking and reflecting. Not a week goes by but the Fianna Fáil group meets to discuss the matter, as Deputy Ó Fearghaíl said. However, we have not as yet been able to coincide on all of the points on which we wish to come to a consensus. When we do, we will present our thoughts. As others have said, they will not be written in stone but will be reflective, I hope, and will allow us to move on.
I have asked the clerk--
I beg your pardon, Chairman. If you are finished remonstrating with me, I would like to respond briefly.
Not really, I am talking.
No, there is a limit to this. I made no criticism of you personally. I referred to a decision made by the committee to which you were party and which you pressed. You reminded members on the last occasion we met of what we were supposed to be doing today and it was on the agenda for today's meeting. I have no wish to continue the row but I also have no wish to be made a fool of, have my party made a fool of or have it used.
These are serious issues about children which require our attention and decision-making. The committee cannot function if we all do our business on the basis that within two, three or four weeks we will have an open exchange when we will express views of a preliminary nature based on submissions received with a view to having an exchange to see whether we can reach a consensus. To order our business in such a manner and then have you chair the committee in that way and to reach the point - we postponed it three weeks ago - where, with all due respect to the Fianna Fáil group and the Minister of State, we are subjected to what we have been subjected to this afternoon is simply not good enough.
I will not take this schoolmarmish lecture to which you have just subjected me. I was not in any way critical of you. You are abusing your position. Until today, the committee has operated on a non-confrontational, discussion basis, dealing with issues which we have teased out across the room. If we are now in a situation where decisions made will simply not be implemented, where it really does not matter from the Chair's perspective whether they are implemented and where we are given excuses that, frankly, do not stand up, it is not acceptable.
I will say no more about the issue but, with all due respect, I suggest it is not your role to make the type of speech you have just made.
What I have said is absolutely truthful. The Minister of State wished to contribute.
With regard to the concern of Senator Alex White as to the date of the conclusion of the work of this committee and our commitment to meet the November deadline, it is effectively a matter for the committee to produce a report. While we are anxious that it be concluded by November and we agreed to the extension, it is a matter for the committee to conclude its work. I am present as an ex officiomember. It is unusual to have a Minister of State as an ex officio member of a committee; previous constitutional committees which dealt with issues such as property rights, the family and freedom of expression did not have a Minister as an ex officio member.
Deputy Ó Fearghaíl elucidated the Fianna Fáil position. To direct a point at Deputy Shatter, Deputy Ó Fearghaíl made it clear that the Fianna Fáil position was to establish a zone of absolute protection, in other words, to accept the concept of absolute liability, which in itself is an important contribution and an important step in the evolution of the thinking of the Fianna Fáil Party and helpful to the deliberations of the committee in general. However, Fianna Fáil has made it clear that it is not prepared to second guess this issue.
The Deputy may think it is a merely an issue that we want to hear what child psychologists and child psychiatrists have to say. I have had extensive discussions with Senator Corrigan on the net issue. She is a child psychologist and will not mind me referring to this point. It is her view that we have to have a proper inquiry as to the correct age at which children begin to fully understand the consequences of their actions, in other words, their capacity to give informed consent and thereby no longer require the full and unambiguous protection of the State, in other words, a zone of absolute protection. We believe child psychologists and child psychiatrists have a contribution to make in helping us to understand the concept of the maturity and capacity of young children in coming to conclusions.
We are taking steps forward. It is not correct to say we are showing contempt or that it is disgraceful or disgusting. We are not setting out our stall in a way that it is set down in stone, as Deputy Ó Caoláin said. To address the problem directly, the role of the Attorney General is important in this regard. Having read the submission made by Mr. Murphy and Mr. Guerin, with due respect, they say the effect on the Constitution of the Convention on Human Rights is not clear - this "remains to be seen" is the quote. It is inevitable, therefore, that the Government will seek legal advice on the issue. We would want to know what the Attorney General has to say if the legal advice from our colleagues is not definitive. That is why we need to get his view. Equally, the concept of a pre-trial hearing - voir dire - in which the defence of honest mistake could be put without the jury being present is one on which we should get advice from the Attorney General and, of course, the Government, will do so.
On the general atmosphere at the committee, to some extent, we are moving in the wrong way. There is a huge danger in politicising or seeking to extract a political dividend from this issue. The first victim will be consensus, which will only be achieved in the right atmosphere. I would not like to think I am contributing to such a general atmosphere. I am very strongly committed to the conclusion of these proceedings as quickly as possible and in the best interests of children and the criminal justice system. I hope we will avoid such a general atmosphere and will proceed in the best possible spirit.
I call Deputy Noonan. The Minister of State sought to come in before the Deputy.
That is no problem, if everything else has been taken off the table at this stage.
I was interested in Deputy Ó Caoláin's contribution. Is it in order for him to clarify a point?
Yes.
His submission was interesting and well thought out. As I understand it, he did not offer a definitive recommendation for the age of consent. I understand why. He is of the view that the absolute zone of protection should be confined to persons in responsibility who transgress. This is not absolutely in line with the Law Reform Commission but it seems to draw on its recommendation.
It is close to it.
According to Deputy Ó Caoláin's proposal, the defence of reasonable mistake would be available in all other cases.
However, I am not clear as to the Deputy's view on sexual activity between a boy and girl of proximate age, where the boy is over the age of consent and the girl is under the age. I assume the participants would know each other's age and that there would be no validity in offering the boy a defence of reasonable mistake. Has Deputy Ó Caoláin thought that through?
I am not sure one can make that assumption. It is one set of circumstances where the persons involved know each other--
I refer to a long-standing relationship between a boy and girl, where the boy is over the age of consent and the girl is under the age.
Deputy Noonan refers to a case where the persons involved are very close in age.
Yes, and each would know the other's age.
Yes, the Deputy refers to cases where the young people concerned are of relative age compatibility. As I have said at previous meetings, I am concerned that in expressing this in a black and white way and in drawing definitive lines, we will create serious consequences for young people. Such young persons are not predatory and are not the type of person whose activities we seek to address substantively out of this process. There is a danger that we may end up criminalising young people who have no criminal intent and are not predatory. I am conscious, given my many years' experience of local government and my exposure to a variety of people within the professions in my own community, that many people's notion of the nature of a predator is not always accurate. A predator may be as young as 13 years. It is difficult to cater to every situation.
I am concerned that we are putting in place rigid directions whereby the courts will have no option but to apply the bleakest consequences for certain individuals who, in my mind and in the minds of many others, are simply other innocent young persons. As I stated in my submission, these concerns must be evaluated by the Director of Public Prosecutions. I do not claim to have all the answers. However, in participating in this committee, I seek to ensure that we do not facilitate the destruction of the lives of innocent young people - invariably young males. I claim no monopoly of wisdom in terms of how to avoid such a scenario, but I am very much of a mind that we must, as best we can, take account of all the eventualities that may present. We could never hope to forecast all of these with certainty. Even in the period since this committee was established, circumstances have arisen that one could never have second guessed and decisions have had to be made. We are trying to avoid a situation where innocent young people are criminalised. I cannot be any clearer or more prescriptive than I have been.
Has the Deputy considered a type of pre-trial situation in the absence of a jury, as referred to by the Minister?
Yes. There is merit in all these proposals. We have examined the Scottish approach and deliberated with colleagues north of the Border, where developments have recently taken place in the area of child protection and the criminal law. It is important that we seek ways to protect children from the potential ravages of cross-examination and the difficulties that presents. There are international examples of approaches which we can point to and commend as worthy of consideration. I make direct reference to that in this three-page missive. I will leave it with the Chairman at the end of the meeting for circulation to members.
The secretariat will distribute it.
Members will not be reading it in The Irish Times.
This has been an interesting meeting. I hope the disagreements that arose can be overlooked for the common purpose of working for the benefit of children. That is what the committee is about. It is not a question of the individual views of the Chair or members; it is about the good of children.
As members are aware, there will be no meeting next week.
May I comment briefly?
Yes. Does the Senator wish to comment on his submission?
My comment relates indirectly to my submission but arises from Senator Ó Caoláin's contribution. Before that, however, I refer to my presumption in respect of people not making written submissions. I apologise to Deputy Ó Caoláin in this regard. That presumption was an inadvertence on my part. The Deputy's careful and thoughtful submission gave the lie to it.
I wish to raise something for the information of members, because it is relevant to our work, without presuming they are not aware of it. On 2 June, the day before yesterday, a committee of the House of Commons commenced deliberation of the proposals on a new regime for Northern Ireland whereby the age of consent is to be reduced from 17 years to 16 years. There will be a separate regime dealing with sexual contact with persons under 14 years. Many of the issues that are of concern to us have been discussed in the Northern Assembly and are now being debated by way of a draft order-in-council being put through in the House of Commons. This will bring the position in the North into line--
Are these proposals being debated in committee in the Northern Ireland Assembly?
They are being deliberated in committee in the House of Commons. It is possible to read those deliberations on-line, just as one can read the deliberations of our committees. This debate, which began on Monday, touches on many of the issues with which we are grappling. It proposes to bring the law in the North into line with that in England and Wales. It has been controversial in the North and the issues have been thrashed out in the Assembly. I draw colleagues' attention to this because it is highly relevant. I am certainly not suggesting that we should simply follow what is being done in the North. However, the situation that pertains within the jurisdiction of our closest neighbour, with which we share a border, is relevant to our discussion. There are many child protection issues that must concern us as between the North and the South.
I thank Senator White for bringing this to our attention. I thank Deputy Ó Caoláin for his productive efforts and look forward to other members' similarly productive efforts.
The next meeting will take place on Wednesday, 18 July, at which Mr. Seán Guerin will talk us through the submissions we have received. There are 166 of them, including 58 substantive submissions. This is the least we can do given that people took the trouble to contact us.
If it is agreeable to members, I propose to do this at the joint committee's next meeting on 18 June. I thank everyone. I suppose the meeting will be in private session. People may not wish their submissions to be made public. I do not know whether that is the case.
I thought members had decided that today's meeting was public.
Yes, today's meeting was public. However, I was referring to the day on which the submissions will be examined.
I apologise. As I stated--
All submissions are public documents anyway.
They should be.
Many of them came in via e-mail or on-line and so on--
However, they are publicly accessible documents and as such are amenable to freedom of information requests.
The joint committee adjourned at 6.15 p.m. until 5 p.m. on Wednesday, 18 June 2008.