I welcome my colleague, the Minister for Justice, Deputy McEntee, to the House. It is good to have her in the Seanad again. Amendments Nos. 1, 2 to 7, inclusive, and 9 are related. Amendments Nos. 2 to 7, inclusive, are logical alternatives to amendment No. 1. Amendments Nos. 1, 2 to 7, inclusive, and 9 may be discussed together by agreement. Is that agreed? Agreed.
Children (Amendment) Bill 2020: Committee Stage
I thank Senator McDowell and other Senators for the manner in which they have worked with my Department and me to ensure the speedy passage of this legislation in order that we can implement change and address the concerns that have been raised. A number of issues have arisen since Senator McDowell published this Bill which I propose to address in these amendments.
Amendment No. 1 proposes to delete all of section 1, namely, lines 9 to 33 of the Bill, which propose to replace section 252 of the Children Act 2001 with a revised section. The new section, which is Part 1 in the Bill, is to insert a technical amendment to section 252(1), add three new subsections, namely, subsections (1A), (1B) and (1C) and insert a technical amendment to section 252(2) and add a new subsection (2A). Instead of replacing section 252, I will be amending it to ensure that parents will be free to refer in media reporting to the names of their deceased children who have been victims of crime. This will also remove the restrictions on the reporting of the identity of accused or convicted persons in such cases where there were restrictions because it might lead to the identification of the deceased child victim. However, this will not operate to undermine the provisions of section 252 if another child is in need of its protection. Nor will it undermine the provisions of section 93 of the Act, in particular, which protects the identity of a child who is the accused or convicted person. This is the point raised by Senator Higgins in her amendments and I have addressed it in this section. In addition, my amendment also addresses the restrictions that apply to the identification of a person who was a child at the time of the offence but an adult at the time of the proceedings.
I move amendment No. 1 to amendment No. 1:
To delete subsections (1) and (2) and substitute the following:
“(1) The Children Act 2001 is amended by the substitution of the following for section 252:
“Anonymity of child in court proceedings
252. (1) Subject to this section, in relation to any proceedings for an offence against a child or where a child is a witness in any such proceedings—
(a) no report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification, and
(b) no picture which purports to be or include a picture of the child or which is likely to lead to his or her identification,
shall be published or included in a broadcast.
(2) Subsection (1) shall not apply to the publication or inclusion in a broadcast or report of a report or picture referred to in paragraph (a) or
(b) of that subsection relating to a child where—
(a) the proceedings concerned relate to the death of the child, and
(b) such publication or inclusion would not result in a contravention of—
(i) that subsection in so far as it related to another child, or
(ii) section 93.
(3) Subsection (1) shall not apply to the publication or inclusion in a broadcast of a report or picture referred to in paragraph (a) or (b) of that subsection relating to the person against whom the offence concerned is alleged to have been committed where—
(a) the person has attained the age of 18 years on or before the date on which the proceedings commence, and
(b) such publication or inclusion in a broadcast of the report or picture would not result in a contravention of—
(i) that subsection in so far as it relates to another person, who is a child, or
(ii) section 93.
(4) Subsection (3) is without prejudice to any other enactment or rule of law applicable to proceedings referred to in subsection (1) that operates to prohibit the publication or inclusion in a broadcast of a report or picture referred to in paragraph (a) or (b) of that subsection relating to any person.
(5) Subject to subsection (6), the court may dispense to any specified extent with the requirements of subsection (1) if it is satisfied that it is appropriate to do so in the best interests of the child.
(6) The court shall not, in accordance with subsection (2), dispense with the requirements of subsection (1) in respect of a child where to do so would result in the contravention of—
(a) that subsection in so far as it relates to another child, or
(b) section 93.
(7) Where the court dispenses with the requirements of subsection (1), the court shall explain in open court why it is satisfied it should do so.
(8) Subsections (3) to (6) of section 51 shall apply, with necessary modifications, for the purposes of this section.
(9) Nothing in this section shall affect the law as to contempt of court.”.
(2) The amendment effected by subsection (1) shall, on and from the date on which this section comes into operation, apply to the publication or inclusion in a broadcast of a report or picture to which section 252(1) of the Children Act 2001 applies, irrespective of whether the proceedings referred to in that subsection were commenced before that date.”.
This amendment in effect is to put into one continuous narrative the substance of the Minister's proposed amendments to the Act.
Frankly, good legislative drafting practice now requires that every Bill should be intelligible once it passes through the Houses. A person should know exactly what the law is. I have not queried the substance of the Minister's amendments but the real problem is that a member of the media would need a law degree if he or she was to work out precisely where the text, as proposed by the parliamentary draftsman, leaves him or her. Therefore, what Senator Boyhan and I have done is to set out section 252 in its entirety, as proposed to be amended by the Minister, so it is now one continuous section and is, insofar as it can be, easily read and understood.
It seems to me that the whole idea of amendment by reference is to be avoided if, in fact, one can substitute an entire section for the section one seeks to amend. In the parliamentary draftsman's proposal there is a series of separate interpolations, amendments, insertions and cross-references. Instead of having subsections (1) to (9), inclusive, for example, we now have subsections (1A), (1B) and (1C) and subsection (2A). The problem with all of that is that it is virtually unintelligible to a member of the media sitting in a newspaper office or studio somewhere trying to work out precisely what is and is not now prohibited or permitted by the law.
Although I have articulated some reservations about where we are going, I am taking at face value the Minister's amendments and the authority she got from the Cabinet to propose amendments to the Bill and simply trying to make some kind of intelligible sense of them. It is in that spirit of not trying to substitute any views of my own, but trying to give effect solely to the Minister's proposals, as approved by the Government, that we have effectively consolidated and put them in a continuous form, as set out in amendment No. 1 to the Minister's amendment.
Therefore, it makes common sense to have the law easily understood. It is a complicated enough piece of law to start with. I am not claiming any special rights on this. Since it is the Bill I proposed, however, I do not want somebody to say that he or she cannot understand a word of it and that there are subsections, new subsections and cross-references and things he or she cannot follow. A person really would have to be an accomplished law student if he or she was handed the parliamentary draftsman's text. I fully understand where it came from. The Minister got permission from the Government to propose particular amendments and adopt the Bill on the basis that particular amendments were made. However, when the Department of Justice is doing that, it should, in fact, have a continuous text embodying everything it is proposing to do so that somebody reading this Bill, if it becomes law, knows exactly what the section states without having to do two or three works and figure out on paper precisely what each subsection will mean after the passage of this Bill into law.
I welcome the Minister to the House and I support her endeavours on this very important legislation. It is timely and long overdue.
There is an enormous amount of support for what the Minister is attempting to do in the Bill.
I second the amendment to the amendment. In so doing, I am very much guided by my colleague, Senator McDowell, who is a former Minister for Justice, Equality and Law Reform, a former Attorney General and a practising senior counsel. There is no real divergence from the Minister in what he is proposing and I expect that she will be supportive of his initiative. As Senator McDowell outlined, it is about having legislation that is easily read and understood and, more importantly, easily applied. We do not want there to be any ambiguity about what the Minister is attempting to do. As outlined, the amendment to the amendment attempts to ensure that the Bill is easily read and understood. Senator McDowell has set out the rationale for the proposal and I see no reason that the Minister would oppose it.
I will go as far as to say that I support her in her endeavours. Sometimes in politics, people get all hung up on who is initiating legislation. The bottom line is the question of whether it is the right legislation. This is a good proposal, it is the right proposal and it is long overdue. People involved in the many tragedies relating to instances that are impacted by the legislation will be supported by its provisions. I wish the Minister well and I hope she is agreeable to accepting the amendment to the amendment.
I welcome the Minister to the House. On behalf of the Labour Party, I again welcome this important Bill. I am glad that we are seeing it move swiftly through the Houses and that we are all on the same page with it. However, I support Senator McDowell's proposal to present the amendments in a way that is more coherent. I spoke on Second Stage about the piecemeal way in which, unfortunately, the principal Act, the Children Act 2001, was commenced and implemented. Many Members, including me, have spoken on previous occasions in this House about the need for clearer co-ordination and codification of legislation, particularly criminal law statute. In the spirit of greater clarity and ease of access to criminal law statutes, I support Senator McDowell's amendments. The spirit in which he has advanced them is very much a constructive one. In England, we have seen a strong movement towards clarity of drafting in criminal law statutes. In this State, the National Adult Literacy Agency, NALA, has asked us to be more straightforward, clear and accessible in legal language generally. Senator McDowell's amendment is in keeping with that spirit.
I join other speakers in welcoming the Bill and I support the calls for a move towards more concise and clear language, where possible. However, I also have substantial concerns regarding certain provisions of the Bill and I would appreciate if the Minister could elaborate on them. I have tabled a number of amendments, which I know are not perfect. I am happy to move with the consensus of the House in addressing the issues in general.
The issues I am trying to address relate to two or three provisions in the Bill. I would like a clarification as to how the Minister considers that they will be specifically addressed. My first concern is that there may be situations whereby there needs to be a partial disposal of the privacy provision. A situation might arise, for example, where there is a wish to protect one child in a proceeding and also the rights of another child to be named or for his or her family to name the child. My amendments set out provisos whereby a decision in regard to one child, such as the withholding of his or her name where he or she is accused or convicted, should not prejudice the rights of another child who is a victim or witness. It is an attempt to ensure that we get the balance right in that regard.
I am concerned by the references in the proposed amendments to section 93 of the 2001 Act. That section is quite limited, stating specifically in its preamble that it applies only to proceedings before any court. My concern is that section 93, which seeks to protect a child from being named, would include the proviso that where he or she is accused or convicted of a crime, it may be seen to be in the public interest that he or she should be named.
That is an appropriate proviso. However, my concern is that section 93 only applies to proceedings before any court. I am not clear as to what the protections and mechanisms will be in the years afterwards when a case is no longer before a court. I do not know if that is intentional or inadvertent. We might need to either adjust section 93 or produce something customised to this situation, which I attempted to do, perhaps imperfectly, in my amendment. Those are my two concerns. One is addressing the issue where, say, a 14-year-old who is accused or convicted of manslaughter as soon as the case is finished, and before the proceedings, can still be named. Also, we need to get the balance right that in that we may not wish the name or the image of a child who is accused or convicted to be seen. That is the reason I tabled another amendment, which is part of this grouping, which proposes to insert the words "fully or in part". It should not be a blunt case of apply or do not apply. It may be very important those provisos allowing for children to be named should apply to most children associated with a case, but not all. Is there still quite a hard binary in the Bill where we cannot balance having a different approach to the naming of a child victim versus a child who may be a perpetrator or one of a group of perpetrators in a crime? As other have said, the Minister’s amendment is quite dense. Those issues may be addressed but from my first reading of the text, I still have concerns.
In addressing this, I must confess I am loath to contradict legal opinion I generally hold in great esteem. I would not consider myself to be an accomplished law student though I passed with a decent clearance of the grades required. That is where I put myself.
What does one call the doctor who comes last? Doctor.
In this context, I see a sense to the order of keeping everything in the proposed new subsections starting with "1" and grouping those together. We are balancing four documents. I have the sections of the Children Act, the amendments and the Bill as published. In the incoherence of so many documents, it can look a little disordered. However, it will be clearer when the new section 252 is published. I agree with the original provision of subsection 1 and then subsections (1A), (1B) and (1C) being the amendments that qualify that. To me, it makes sense to have all the subsection starting with "1" together and then to move on to the qualification of them in subsections (2) to (5). It is semantics but to me it makes sense. I would not call myself hugely accomplished but I reckon our journalist colleagues would be well able to follow that and see that it is a provision that is merely a qualification and an alternative to the original provision of subsection (1). I would concur with the Minister’s view.
Does the Minister want to respond to the amendment?
No. The Minister’s is the first contribution.
I had put some questions which she might be able to respond to.
It is the Minister’s prerogative to decide.
It is Committee Stage.
A number of amendments are being taken together. I read out a direction that amendments Nos. 2 to 7, inclusive, and 9 are being discussed with amendment No. 1.
I thank Senator McDowell for his amendment. It is important to stress the co-operative and collegiate approach in which this legislation has been approached. I asked my officials to consider the amendment he proposed and the possibility of accepting it.
As Senator McDowell has said, the policy is the same and what we are trying to achieve here is essentially the same. The advice I have been given is that it would be best practice to amend rather than repeal the section. I fully agree that legislation needs to be legible and that there needs to be clarity in what we are doing. People need to be able to read it and clearly understand what it is we are doing. The logic is to try to avoid changing subsections, as has been mentioned, and the numbering so that everyone is clear what has been changed. We want to avoid any confusion with references to subsections. This is the basis on which I would prefer to push the Government amendment. Perhaps strictly from a legal point of view there might not be problems, but in reference to documents issued administratively or in academic commentary a change in the numbering in this type of scenario might lead to confusion. The Senator says his approach is simpler but the advice I have been given is that by ensuring we do not change subsections, in particular subsection numbers, what is being changed and what we are referencing are clearer.
My understanding is that section 39 continues to apply after proceedings have ended and that case law on this has been confirmed. Courts tend to apply the public interest exception in respect of accused children. I believe the amendments put forward by the Senator are addressed in the Government amendment. The amendment inserts a new subsection (1A) after subsection (1). This disapplies the prohibition on publication or broadcasting where the proceedings concern the death of a child. This provision disapplies subsection (1) automatically, which means that the reference to the child victim who has died can be published without the need for the court order. However, there are two exceptions. The first is where it would lead to the identity of another child who was a witness or victim of an offence to which the proceedings relate. The second is where it would lead to the revelation of the identity of a child accused in respect of the proceedings, contrary to section 93 of the Act. That section protects the identity of child offenders or a child accused of a criminal offence. As I have said, my understanding is that section 93 continues to apply after proceedings have ended. I believe the amendments put forward by the Senator are addressed in the Government amendment. Again, I am happy to hear a response on that.
The Minister said she has been advised that her amendments would be better in some sense but she has not stated why. I cannot understand how it could possibly be that one amendment that is legible is less satisfactory than one that is almost illegible, as to its meaning at any rate. I would expect the Minister to say whether she sees any difference in the terms of our amendment and the amendment she is proposing to make. That is the first point. Is there any difference that she can see?
If there is no difference then we are dealing with style and section 26 of the Interpretation Act 2005, which I will come to. If there is some difference between the two results, I would like to hear what it is. If there is no difference, then it is a matter of good legislative practice, as decided by successive Governments, which have said they would not do the kind of thing that is being done here unless it was necessary to do so. I would like to hear from the Minister on that point.
I am glad the legislation is progressing. I know that it has a further journey to go. I urge the Minister to continue to engage with Members of this House as the legislation continues its journey. I believe there are issues of clarity and I still have two concerns. They may seem to be contradictory but I do not believe they are because they relate to the different rights and different circumstances of children and the difficulty of balancing the rights of children.
I am perhaps a literalist. Perhaps the Minister can provide me with notes in respect of the case law. I tend to read law by its letter and the letter of the law in section 93 is explicit as it relates to proceedings before any court. I would like to see where the advice of clarity is and I would like an assurance on section 93. While the section has an in-built balancing mechanism that allows for and protects the rights of the child, it also looks to the proviso of the protection of children generally in the public interest.
It has a balancing mechanism within it, which is why I think it is useful. However, I would like to see the case law. I am very reluctant as a legislator to let legislation go through purely with reference to case law and where it is inexact and does not cover my area of concern. That is a reasonable concern.
The other concern I still have relates to amendment No. 7, which is in this group. It outlined caveats regarding some of the protections in respect of a child who is accused or convicted, whereby I sought to protect the child who is accused or convicted from his or her image or name being used in any report. I slightly narrowed that from the language in amendment No. 1, which refers to anything that could result in the child being identified. That was in the context of my concern that the first part of the Minister's amendment could be so widely interpreted that in a case where a child was a perpetrator, one could have a situation where a child who was a victim or witness is effectively excluded from being named, rather than being able to find a balance. We need a mechanism where we are not fully applying this provision and are able to apply it in a way that relates and is appropriate to the child who is a victim and a witness and then give as much protection as possible in terms of the name and image, for example, of a child who is accused or convicted. While this legislation will be progress, given that nuance, I am concerned that the Minister's amendment is still too wide in one respect and possibly too narrow in another respect. Perhaps that could be examined further as the legislation progresses.
I understood the Minister's response to be that if we keep the amendments in section 1, the rest of the text will remain numbered as is currently. This would mean that anything outside of the Act, whether it be academic writings, productions within the Department of Justice, the Department of Children, Equality, Disability, Integration and Youth or anything else that refers to those subsections will remain accurate, whereas if we renumber, anything that refers to this section of the Act will therefore become redundant. That is my understanding of the Minister's response.
I will outline the advice we have received. On the substitution of section 252, this would constitute a repeal and re-enactment with modifications which then engages section 26(2) of the Interpretation Act. The implications of the application of section 26(2) would need to be carefully considered and that it is not possible in the timeframe involved.
The advice is that amending section 252 is more transparent and clearer to the reader of the Bill, including to Members of the Houses, although there are different views on this in terms of which elements of the existing section 252 are being retained and what is new. The substitution approach would require the reader to essentially examine the new section in its entirety against the existing section 252 in its entirety.
The approach of substituting section 252 in its entirety has the effect of altering subsection numbers so that the existing section 252(2) would become section 252(5), with only a small change being made to it. Existing subsections (3) to (5), although identical to the current form, would become subsections (6) to (8). From a strict legal point of view, this might not be problematic. However, in other instances, in particular where we have documents or academic commentary or other situations, the changing of the numbers might lead to some confusion. It is, therefore, very much a case of trying to keep the text in line with the sections that are part of the current Act so that we can ensure consistency inasmuch as possible.
The policy, as has been set out in Senator McDowell's amendment, and what we are trying to achieve here are very much the same. It may be just a stylistic format but the advice that I have is that the proposals set out in the Government amendment are best practice. It is better to amend rather than to replace the sections to avoid changing subsection numbers. That is the crux of this.
My understanding of Senator Higgins's main concern is that we do not provide for the accused or a convicted child to be identified. I agree with her on that. Section 93 addresses that point and that is the reason I have made the amendment subject to section 93. My understanding is that this does apply after proceedings have ended and that there is case law on this on which I would be able to provide her with some more information after today but my understanding is that it does apply afterwards.
The Minister has just said that it is best practice to amend the Act in the way she has suggested. I disagree fundamentally with that. It is not best practice to do that. It is inferior and worse practice, in my respectful view. The Minister said correctly that section 26 of the Interpretation Act would be engaged by taking the steps of accepting the amendment in our names, but it is worthwhile looking at the actual terms of section 26(1). I ask the House to bear in mind that, in the Interpretation Act of 2005, the term "enactment" also includes any provision of an enactment. The section provides as follows: "Where an enactment repeals another enactment and substitutes other provisions for the enactment so repealed, the enactment so repealed continues in force until the substituted provisions come into operation." That is not a problem. We are not actually decriminalising anything or affecting anybody's criminal liabilities at all. The second subsection (2) states:
Where an enactment ("former enactment") is repealed and re-enacted, with or without modification, by another enactment ("new enactment"), the following provisions apply:
(a) a person appointed under the former enactment ... [that is not relevant];
(b) a bond, guarantee or other security ... [that is not relevant];
(c) proceedings taken under the former enactment may, subject to section 27(1), be continued under and in conformity with the new enactment in so far as that may be done consistently with the new enactment [that is fairly clear];
(d) if after the commencement of this Act-
(i) any provision of a former enactment, that provided for the making of a statutory instrument ... [that is not relevant since the Act does not deal with any statutory instrument]
(e) to the extent that the provisions of the new enactment express the same idea in a different form of words but are in substance the same as those of the former enactment, the idea in the new enactment shall not be taken to be different merely because a different form of words is used.
The crucial provision, paragraph (f), of the 2005 Act states:
(f) a reference in any other enactment to the former enactment [that means to the former provision of enactment] shall, with respect to a subsequent transaction, matter or thing, be read as a reference to the provisions of the new enactment relating to the same subject-matter as that of the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be disregarded in so far as is necessary to maintain or give effect to that other enactment.
The law is very clear and the 2005 Act, which was passed when I was in government and drafted when I was Attorney General, was precisely intended to deal with this kind of situation. If we amend an Act and substitute a new section, everything remains in existence and the two must be read, if they are trying to achieve the same purpose, as having the same meaning and that no criminal proceeding is in any way prejudiced by the substitution of one section retrospectively for another.
I make all those points for this very simple reason. The Minister said that there has not been enough time to study the application of the consequences of section 26 of the 2005 Act. There is plenty of time. We will have a Report Stage debate on this Bill also. We are not dealing with all sections today.
There is plenty of time for the Department to state clearly what prejudice could possibly emerge from the acceptance of an amendment that sets out the section in an intelligible form and does not have section 1A, 2A or 1C and all of the rest of it thrown in. If the Department or the draftsman can see any possible basis on which acceptance of the amendment in our name could have some unintended consequence, let them say so. Let them say what possibility there is.
Our function is to make intelligible laws. We are trying to have a law at the end of this whereby people can look at section 252 as it will be then and say they understand the provisions of the section and they do not have to have, as Senator Seery Kearney said, three documents in front of them to try to work out what is going on. They will clearly see what the section will state. In the drafting of this amendment I was scrupulously careful to make sure every comma and every single aspect of it is as exactly as the Minister intends to bring about the law to be. There is not the tiniest deviation in implementing his proposal. We do not have to have sections 1A, 1B and 1C. We do not have section 2A. We would just have one coherent section that would fall absolutely within the ambit of section 26 of the Interpretation Act 2005. It would be readable and clear with one section having been removed and another put in. It would all fit together logically. No criminal proceeding would be affected by it. No previous prohibition would be affected by the change because the Interpretation Act so says. This is the crucial point. Either we are in the business of making intelligible laws in the House or we are not. It has been stated that the Interpretation Act has not been sufficiently studied. There is plenty of time to study it, and between now and Report Stage there will be plenty of time to come up with one possible theory as to why the law should not be in an intelligible form and not be amended in the way proposed. This is what I have to say about this.
With regard to the points made by Senator Higgins, I read section 252 as being quite narrow in its effect. It refers to a report being published or broadcast and it is in relation to any court proceeding. Some people seem to think, and I have hinted at this previously, that this means an historical fact can never be mentioned. We could say, for instance, the fact that putting in writing in any shape or form, or broadcasting in any shape or form, the fact that child A was convicted of killing child B is covered by this Act. On the other hand, supposing the mother of a child, and this is not fanciful, wants to say that a child was killed by his 17-year-old older brother. This is not a report of a proceeding. It is simply a statement of fact. The fact he was convicted or not convicted and there was some court proceeding is not the issue. I am convinced that sections 252 and 93 refer to reports of court proceedings.
I am convinced that sections 252 and 93 refer to reports of court proceedings and are not crafted sufficiently widely to say that somebody cannot say that my eldest son, aged 16, killed my youngest daughter, aged 12, in any shape or form anywhere, in a book or anything like that. It is just a simple statement of fact. Whether that would be in contempt of court is a different matter. I do not read these provisions as actually saying or prohibiting a statement of fact, namely, that child A killed child B, if it has nothing to do with saying he was convicted of it by a jury or whatever, just saying he did it.
One of the problems I have about all of this, which I expressed on Second Stage, is that it would be remarkable that the mother of a child who was killed can say or write nothing and participate in no interview at all about the death of her child on the basis that somebody might recognise her, thereby recognise the dead child, and thereby draw the inference that it was another of her children who carried out the killing. That to me is not the law as we have enacted it yet. Perhaps people believe that should be the law. I am doubtful about it. I do not think that one can say to a mother that she may never ever refer to the fact that one of her children killed another of her children. The same applies, obviously, to fathers too. It seems to me an extraordinary invasion on the right to free speech to say that a person cannot describe what happened in his or her own family as a matter of historical fact, forget about any court proceedings, who gave evidence or what juries thought of the facts or not.
I make that point because Senator Higgins is correct. We may all be proceeding on a supposition of law which is not there, which is that there is an absolute ban of ever identifying any person who committed an offence as a child, even by reference to the historical fact of what they did. I know all of the arguments, by the way, and I accept the force of many of them, for the proposition that no child should have his or her criminal behaviour hung around his or her neck for the rest of his or her life. On the other hand, to say to a parent of a child victim that nobody may ever a publish any account of what happened in that parent's family, on the basis that there was a court proceeding later and a conviction, is very strange indeed.
It raises this slightly odd arrangement that if there were no court proceedings, if the DPP said that there was not enough evidence to convict, can the parent of the dead child say he or she accuses X or that child killed his or her other child? If there is no court proceeding, section 252 of the Children Act does not seem to apply, whereas it does seem to apply to a report of a court proceeding, or the outcome of one, in that it applies to the fact that somebody was convicted of an offence, but it does not seem to apply to the underlying historical fact that child A killed child B.
These are not entirely fanciful considerations. There was a former Taoiseach of this country who by accident shot and killed his brother.
There was no criminal intent at all involved, and it was an accidental discharge of a firearm. I should say that person is dead, in case anyone was worried about it. That happened, and people can write about it. Is it the case that they cannot write about it because there was a subsequent conviction and a court proceeding, and that a curtain is drawn down over such an event, and it becomes unlawful to ever refer to that fact because there was a court proceeding? Or is it, as Senator Higgins is suggesting, I think, that the crucial difference is that we are dealing here simply with reports of court proceedings, and we are not dealing with a blanket ban on history?
I wanted to make those points. These were points I had in mind when we saw what was here on Second Stage but I did not want to overcomplicate the matter until I saw the Government amendments. However, I still think we should be conscious that the term “report” means something. This is a criminal statute. It is not a report of a court proceeding without any reference to the court proceeding to identify somebody one believes actually caused the death of another person, whether they were a child or an adult.
I am conscious of the nuance in this and that we want to move forward. To clarify, I do not have a single concern; I have two concerns, and the Minister has addressed one of those. I am concerned about how section 93 would be applied. Could it be too narrow in its application or, potentially, could it be too wide in its application? Those are the nuances to be looked at. That is why, although it is not perfect, I had attempted to create new law rather than rely on section 93, which I confined to dealing with court proceedings. I looked to something different. Perhaps the Minister could look to some of the spirit of those and see if there may be space on Report Stage to fine-tune that.
I was not simply speaking about my concerns in regard to a child who is accused or convicted, and I also have concerns in regard to a child who might be a victim. My concern is that, as it stands, a blanket decision seems to be made. They are tied together in such a way that we might need to be able to provide for some nuance which would allow for different treatment, in the same case and in regard to the same proceedings, in regard to a child who is a victim and a child who is accused or convicted.
Something has been lost in the new amendments, although I recognise what the Minister is trying to do. In the original Bill as proposed by Senator McDowell, subsection (3) stated: “The court may, to any specified extent and subject to such conditions as it may stipulate, dispense with the requirements of subsection (1) in any case”. I wanted that to be more nuanced. It was not that subsection (1) would definitely apply on or off in a case, but at least it allowed for the nuance of conditions. It may be that a victim would be named but that his or her school would not be talked about. There may be balance to find in terms of how we ensure protection. My worry is that any situation in which there is a child who is a perpetrator might effectively end up automatically leading to a situation where the child who is a victim cannot be named, and Senator McDowell outlined one scenario but there are other scenarios that we know of.
I would like this legislation to allow, to some extent, for what was proposed in subsection (3) of the original proposed legislation and in my amendment No. 7. Amendment No. 7 relates to a child who is accused or convicted of murder, attempted murder or manslaughter, and manslaughter, of course, is a tragedy that can happen in these situations, as was outlined earlier. The amendment states: “Nothing in this subsection should prejudice a court’s application of subsection (3) in a manner which it believes appropriate, having regard to the interests of a child who is a victim of an offence or a child who is a witness and to the public interest including the protection of children generally.”
I worry that at the moment the mechanism that allows for a nuanced approach, for example, for a court to say a child who was a victim can be named subject to certain conditions, is absent. It may be that the adding of certain conditions, such as not mentioning where it took place, could allow for appropriate protection. Removal of the name and the image are the core pieces. One does not want somebody who commits a manslaughter at 13 or 14 years of age being shadowed into their 30s and 40s and the rest of their life by their image or name being used and their story being told again and again. The idea is that the name and image of somebody as a perpetrator might be protected and as much protection as possible might be given in relation to information that could lead to his or her identification but that it be done in a way that still allows a victim to be named.
My problem at the moment is the legislation is still binary in that in regard to a particular case, the naming applies while in relation to another one, it does not. This is rather than being able to unpick the particular circumstances. All cases to which this might apply will be awful cases. They will have awful nuances and incredibly vulnerable people will be affected so we might need nuanced legislation that allows us to treat each case with the diligent care that is needed. Luckily, they are exceptional cases. They are not the normal case that will happen but, where they do, maybe we need something more nuanced.
Perhaps the Minister could look to the original subsection (3) in Senator McDowell's proposal or to my amendment No. 7. I will not press it my amendment in opposition to the Minister's amendments but perhaps she could look to those proposals and consider whether it might be possible to bring forward something more fine-tuned on Report Stage.
It is well timed following Senator Higgins. Perhaps the Minister would consider those cases where a minor was given a suspended sentence before the Children's Act applied and the adult now does something newsworthy. His or her case can still follow him or her around. It can be embarrassing, particularly when it is taken in the context of fresh news. I ask the Minister to consider that. I do not think it is fair that someone would be tarred with that brush his or her whole life because the press sees it as somewhat newsworthy when today it would not be reported on.
I have not weighed in on the debate so far and I support the need for our legislation to be more understandable. It might be an unfair demand to place on the Minister in this Bill but I hear absolutely what Senator McDowell is saying. One would want to be an accomplished law student to analyse any legislation coming through this House. Legislation should be easy to understand but we want to see this Bill progressed quickly. If that is with the Government amendments, that is okay. It would be nice to get consensus around the Bill at least by the end of these Stages.
I agree with Senator Higgins. I walked away from the amendment I originally proposed in order to get a coherent text on the basis that the Minister wanted her amendments to go through. The amendment I originally proposed tried to bring elements of flexibility into the determination and not to put a judge into a straitjacket or put everything into a binary yes-no, that this is the law, that nothing else applies and that there is nothing else to be considered.
For instance, in the event that the Minister's text is taken to be the holy Bible from now on, take the case of a child who was killed by an adult. If that child's brother testifies as to what he saw and if an account of the court proceedings records him saying that an adult came into the house and killed his sibling, a literal interpretation of this law means that once it is in the public domain that the child's brother or sister gave such evidence, it will be unlawful and an offence to name the victim. This is because under the Minister's text, section 93 states it would tend to identify the witness.
I do not believe that is a necessary conclusion. I know this is urgent and the media are demanding that this be dealt with urgently. Deputy O'Callaghan and I brought our proposals forward in a sense of urgency with the approach of facing up to this issue quickly. As I read the Minister's proposals, however, the court cannot allow the child victim to be identified if the child victim's sibling has testified in the trial and would be thereby identifiable from any identification of the dead child. This is even in the case of a total stranger coming into a house and killing a child. That cannot be right.
I accept there is an urgency but we do not have to just run at it like a bull in a china shop and say that is the result we want. There could well be a case in which it would be a huge injustice to a family to tell them that they cannot name their dead child because his or her brother or sister gave the crucial evidence in the trial. That is why the two approaches both Deputy O'Callaghan and I adopted allowed for the flexibility that Senator Higgins spoke about. There is not a one-size-suits-all law which applies rigidly in every case. There are occasions when it would be perfectly reasonable for a judge to state that the mere fact that a child witness could be identified by identifying the deceased child should not, at the end of the trial if there has been a conviction, be real grounds for deciding that the identity of the child victim should be kept secret. The mere fact that somebody looking at the report of the proceedings might be able to work out that it was a sibling who gave the vital evidence is not of itself grounds for saying that the child victim can never be identified.
That is what we are about to enact if we accept the Minister's wording, however. The worrying feature of all of this is that we are crashing from one extreme to another.
We saw what happened in the Court of Appeal. It said the meaning of the wording was the plain and ordinary meaning and that where the consequence of identifying the deceased was that people would be able to work out the identity of the witness who gave evidence, the brother of the deceased, there could be no identification. The court said it would be an offence for the parents to name the total stranger who came into their house and killed one of their children because of the very peculiar circumstance that one of their other children gave evidence in the matter. We are in a bit of a hurry on this but we are not in a total hurry. Another ten days or two weeks will not be the end of the world if the Minister can sort out these kinds of cases.
We saw what happened in the Court of Appeal regarding the ordinary and natural meaning of a statute. It said it means X and that is that. It implied that if one believes that is a peculiar result, one should go off to the Oireachtas and change it if one wants. Here we are about to enact a law that is going to stipulate that where a stranger comes into a house and kills a child and the only witnesses is the child's brother, which becomes apparent from a court report, the deceased cannot be named because it would tend to identify the witness who gave evidence in the case. That cannot be right. We should not go down that road blindly because, inevitably in two or three years, this kind of case will crop up. The courts will point to the plain and ordinary meaning of the words in what we enacted and state the wording gave the judge no discretion. It will be said it is the end of the matter.
The reason for saying child witnesses are to be protected is very plain. It is to protect young children who have been raped and assaulted and to protect them from all sorts of other things that can happen to them, including being badly beaten up or badly mutilated. Why, however, can we not allow the court some discretion regarding the two situations? Why do we have to have an absolute rule to the effect that if any report tends to give rise to a child witness being identified, no matter what the circumstances, the child victim must not be named because it would make it apparent who the child witness was, no matter the result of the case? Why can we not have circumstances whereby, at the end of a trial, the judge can say it is acceptable to state the chief witness for the State was the brother of the deceased? No injustice would be done to the child at all by that fact being known. Everybody in court would have seen who the child witness was and would know precisely why that child was a witness, why he was in the home and what he was doing in the bedroom or wherever he was when he saw the homicide take place. No injustice would be done at all. Why do we not give judges the flexibility that such a situation demands? Why would we possibly pass a Bill now implying that according to an ordinary and natural interpretation of a new law that we are supposed to have thought through on this occasion and regarding which the difficulty of the matter was supposed to have been realised, the child victim cannot be identified because it would tend to identify the child witness? That is just crazy stuff. We should not go there. We should not do it. I appeal to the Minister not to put into law something that she herself would not support for a minute. The flexibility has been taken out of the original proposed amendment of the law.
An absolutely rigid rule has been put into it whereby if any report would tend to identify a child witness, no matter the circumstances, the other child victim could never be named. That is wrong.
I appeal to the Minister to take on board what I am saying. I am not thinking about silly items. There are many cases where a child would give evidence about an invasion of the home. Thank God there are not many cases where one of the children gets killed. To make it part of our law that the child victim can never be named because an essential witness to the State would thereby be identified, in every case no matter the outcome of the case, is crazy. We should not go down that route.
I have done my best on Committee Stage to try to set out what the Minister and the Government want to be the law in a rational and readable way. It was always my intention, nonetheless, to come back on Report Stage and ask for some degree of flexibility in this matter. We cannot have unintended consequences flowing from our legislation simply because we are in a rush. The Children Bill was originally in gestation for a long time and what turned out to be a mistake was made. We are now trying to remedy that mistake but we are being invited to make another mistake on the basis that it is urgent for us to deal with the matter. I do not accept that this is good governance, law or drafting of good legislation. The point made by Senator Higgins about bringing back the flexibility in the original amendment deserves very close scrutiny. I appeal to the Minister, the Department and the Chief Parliamentary Counsel to look at what they are doing and not ask us to make a terrible mistake a second time.
I am not without sympathy on this matter and I agree a degree of nuance in the hands of a judge would be beneficial. A judge would be trustworthy. There may be difficulty, however, in that we are living in a social media age and the hard facts of the last number of years have been that witnesses, including children, have been named, subject to abuse online and hounded in their communities and in schools. In particularly hard cases, that has occurred. If we put a provision in law, we will find ourselves in a position where we intend a judge to apply nuance but that nuance will be permitted in a social media field.
Before we move from what is a very rigid position, we must consider that context. Some of the experiences of children who went to the same school in certain cases were fairly horrific in recent years. The sense of entitlement under the guise of free speech to put content on social media has been used and abused to the detriment of a child. I agree with some of the points made but I can also see a reason to protect a sibling witness with anonymity because of the particularly harsh environment that is social media.
In any consideration of a very well-made argument we must consider that larger context, that if we give discretion or we look at nuance, we are also fettering the ability to rely on section 51, which is the criminal offence element of it. We may have an implication of nuance in that context, and I am concerned about that.
I welcome the Minister. It is good to see her here again.
I support the Bill. It will simply permit the identification of people convicted of the homicide of children. Currently, perpetrators can hide behind the child's privacy rights to conceal their identities. The Bill will amend section 252 of the 2001 Act. It will also allow for the identification of people convicted of some other crimes against children where the public interest justifies it. The Minister has brought a very important legislative measure to the Houses and I thank her for bringing it forward.
I also wish to voice my support for the idea that we must look at the media and social media to see if we must also legislate with regard to them, because there appears to be a free-for-all as regards what they can say before, during and after a court case without any respect whatsoever for victims, perpetrators or their families. That is increasingly becoming an issue on social media, regardless of what we say in the Oireachtas or in the Government and, in some instances, what the printed press says. We need to consider legislation whereby, if these types of Bills are passed, there is a consequence for social media and other media that ignore that consideration.
In the past, there have been leaks of young people's identities, even though they had not yet been convicted. I cannot bear to think of what that must do to their families. A person is innocent until proven guilty. The victims should have the right to privacy as well. It is something we have lost in this country. We saw it in Britain for many years, dating back to what happened with Princess Diana and all those disasters. It appears that in this country now the media can do and say what they want, irrespective of truth. If this Bill is passed, we will have to consider legislation to strengthen the controls we will have to put on social media and other media platforms.
I wish the Minister the best of luck.
I will address three points. The first is Senator McDowell's amendment. I am not suggesting the amendment will change the substance of the policy or content of the Bill, it is simply a sense that replacing the sections and changing subsection numbers might create a difficulty. It is important that every Member is clear about what has changed, to try to avoid any confusion with references to subsections. Report Stage is scheduled for next Friday and I am happy that we can re-examine that or look at the Interpretation Act 2005 and consider it before then. We can discuss it further by Friday. This is just to avoid any confusion between subsections and references. The advice I have is that this is the best approach and practice in that regard.
With regard to protections in the context of identifying accused children, I believe they are strong in the Bill. Section 93 applies beyond the proceedings. That is not to say that an application cannot be made at a later date to dispense with any protections in a case where there is a deceased child. Obviously, a court will have to decide on that. The Bill does not prevent that from happening at all. I should add with regard to the dispensing provision to allow the deceased child to be named that the court would have an inherent jurisdiction to make a specific order in such a situation. The language itself, in referencing the Senator's amendments and subsection (3) in Senator McDowell's Bill, would widen the basis on which protections would be dispensed with generally, not just with regard to the deceased child. Where the court is dispensing with provisions generally, the best interests of the child standard is more appropriate, which allows for balancing the various interests that are being discussed.
We are not seeking to change the purpose of section 252. It should be to continue to protect the interests of the child or the children who are involved. The best interests principle is not necessarily going to usurp all other interests in a particular case.
As has been mentioned, in a particular case there may be other competing interests at stake, such as children, parents or indeed the public interest. However, the public interest may not always be the appropriate standard, and it can be difficult to reconcile it with the best interests of the child. I have taken on board Senator McDowell's comments. Perhaps we can see if there is some flexibility that can be provided to allow for such nuances. It is most important. I accept the point that by naming a child who is a victim where their sibling is deceased, it may not necessarily harm that child, but the court needs to be able to take that scenario into account and to allow for these types of nuanced situations. Between now and Friday, I am happy to look into whether there is some flexibility in language that can be used to try and deal with such nuances. However, in relation to section 93, the legislation is strong in that regard. I will seek to get some case law to point to the fact that it also applies after proceedings. I am assured that that is the case and it has been the case. I can come back to the Senator on that point in particular.
Before the debate on Friday, I wonder if it will be possible for the Minister to look at scenarios whereby different children may be given different treatment within a case, and the extent to which the legislation allows for that. Perhaps that can be looked at.
In view of what the Minister has said, I do not want to divide the House on the amendment in my name because I know what would actually happen. It is an inevitable consequence at this hour of the evening - I am not naive. However, I want to say strongly that some of the points made by Senator Higgins and me need to be considered. I am sensitive in this regard. I am not saying that this is my Bill, because it is not really my Bill - it is the House's Bill. However, I do not want it to be argued that the acceptance of a Private Members' Bill produced another disaster two years down the road. I do not want people to ask why it was never discussed or looked at carefully. This is not a matter of saving face or preferring one person's drafting to another. It is really a matter of doing the right thing, and not making a second mistake. Bearing in mind that nobody ever saw the Court of Appeal judgment coming, we can now see a potential car crash which might easily take place, and we are looking forward at it. We must adjust what we are doing to deal with scenarios that we know are very likely to happen. The idea of a sibling being the main witness in the case of a child homicide is not fantastic by any standards. It has probably happened many times, and probably will happen many times. I can well imagine the court ruling that the witness may not be identified in any coverage of the case, but I can see no justification for the assertion that because identifying the child victim may result in the identification of the witness, then the child victim cannot be identified. That would be a huge injustice to many families, and it is not right. I will leave it at that. I will withdraw my amendment but I may come back to it on Friday.
Due to the fact that amendments Nos. 2 to 7, inclusive, are logical alternatives to amendment No. 1, they cannot now be moved.
Section 252 creates a criminal offence and, therefore, there is a need that people, including the media, the courts and even the Director of Public Prosecutions, know in advance the date on which the new provisions will come into force. We will not know in advance the date on which the President will sign the Bill, and there can be a short delay as a new Act is promulgated before it becomes a matter of public record. My officials will be advised as soon as the President signs the Bill and I can then sign the commencement order without delay. This will be promulgated by my Department and become a matter of public record as a statutory instrument. This amendment is to ensure that, where we are creating a criminal offence, all those who require the knowledge that this provision is coming into law are given a clear indication of same. As soon as the Bill is signed into law, my officials will make it known and I will sign the commencement order without delay.
It is worthwhile pointing out that subsection (2) in the Minister's amendment No. 1 provides that the amendments affected by subsection (1) "shall, on and from the date on which this section comes into operation, apply to the publication or inclusion in a broadcast of a report or picture to which section 252(1) of the Children Act 2001 applies, irrespective of whether the proceedings referred to in that subsection were commenced before that date". I presume the Minister agrees that it does not matter whether the proceedings were completed before that date as long as this provision is retrospective in its entirety to anything that happened before the Bill is passed. Therefore, in previous cases of child homicides where there have been convictions and so on, the section will not have the effect of prohibiting the republication of reports of those cases that, as we later found out when the Court of Appeal considered the matter, were improperly reported.
When is it proposed to take Report Stage?
On Friday next.
Is that agreed? Agreed.
When is it proposed to sit again?
At 10.30 a.m. on Friday, 5 March in the Dáil Chamber.