This has already been discussed on Amendment 129.
This is just a technical adjustment consequential on the acceptance of amendment No. 129. Amendment No. 129 is an improved version of this section providing for the making of rules of court. It will form part of the new Part V of the Bill dealing with court jurisdiction and procedure. As a result this provision is no longer needed and should be deleted. Consequently I look forward to your agreement.
I move amendment No. 196:
In page 27, before the Schedule, to insert the following new section:
"65.—The criminal age of responsibility shall be raised from seven years to fourteen years.".
This is an amendment to raise the age of criminal responsibility from seven to 14 years. This is important and the opportunity should be taken when dealing with this Bill, as we have dealt with other issues such as solvent abuse and so on, to go into the justice area and outside the remit of pure child care issues. This is an appropriate time to rectify this Victorian relic of the past in so far as the way children can be criminalised at such a young age. We all know that if young people are put into the criminal system, and all that is involved, it most likely will have the net effect of training them to be full-time criminals and do permanent damage to them. We should take a different view of such young and adolescent people. It has been stressed earlier in the discussions on this Bill on Committee Stage when we spoke about the wishes of the child, that a child could not really be responsible for his or her wishes up to a certain age. I believe that this is a sensible provision. I would ask the Minister and the Committee to accept it.
I can appreciate the spirit of what Deputy Yates is trying to achieve here. However, there have been frequent calls in recent years for the raising of the age of criminal responsibility but there has been much less discussion about the implications of such a move for the administration of justice and the treatment of young offenders. The first question that needs to be addressed is what do we mean by the expression "the age of criminal responsibility"? There are at least two possible meanings which suggest themselves. The first is that it is the age below which a child is regarded in law as incapable of distinguishing right from wrong and is, therefore, regarded as incapable of committing a crime. This is the basis for the age being at seven years under current law because seven years has traditionally been accepted as the age of reason, the age at which children first learn to distinguish between right and wrong. The second possible meaning of the expression is that it is the age below which a child will not be dealt with under the criminal law in respect of offences which he has committed. This is the meaning that applies in some European countries where the age is fixed at ten years, 12 years, 14 years and indeed 15 years. Children below the relevant age are not regarded as incapable of committing crimes, rather what the law provides is that they are not dealt with under the criminal code in respect of such crimes.
It is not clear what Deputy Yates has in mind in referring to the age of criminal responsibility. Is it what we might call the age of capacity to commit crime or is it what might be referred to as the age of criminal prosecutability? This is crucially important. If we agree to provide in law that children under 14 years are not capable of committing crimes, there would be widespread public concern at the prospect of youngsters committing anti-social acts and not being subject to any form of punishment or sanction.
While most offences committed by children are petty in nature, the sad fact is that a minority of youngsters are increasingly getting involved in very serious offences. We have seen cases of boys of 12, 13, 14 and 15 years of age involved in murder, rape, arson, armed robbery, joyriding, etc. I think that the man in the street would be appalled at the suggestion that such youngsters could not be prosecuted. Indeed, incidents highlighted at our last meeting reaffirms the need for appropriate laws in this area. Deputy Yates might respond by saying that such youngsters should be dealt with in a different way without involving the criminal law. If that is to be the case, the alternative methods would have to be spelled out in detail before we proceed to increase the age.
The amendment which we are discussing does not provide for this. It does not indicate how young offenders should be dealt with. It does nothing to clarify the respective roles of the Garda, the courts and the health boards in relation to such children. I would have to say that we would need to give much more thought before we could put forward any proposal to raise the age of criminal responsibility. It cannot be achieved by a simple amendment as proposed in this Bill. Consequently I can not accept the amendment.
I am disappointed with the Minister's response. I thought he might have argued that 14 years is perhaps the wrong age and we should go for 12 years. I did not think he would take the view that we should criminalise young people in this way. I take the view that the circumstances that would lead children into the type of deplorable activity he has outlined at such a tender age would be more a product of their upbringing, of their environment and possibly of their deprivation rather than of having developed characteristics as a criminal. I would see them as much a victim as a criminal.
The Minister asked for clarification in relation to what I meant and he outlined two possibilities. I would prefer the latter possibility which is that the criminal process in terms of the administration of justice would not be preferred against people under 12 years at least. We must bear in mind that the Department of Justice is very slow to make any changes and that this is one of the few opportunities the Oireachtas will have to make an input in this area. I believe it validly comes under the jurisdiction of this Committee because we are essentially dealing with children. I believe, therefore, this is an appropriate time to deal with this matter.
I do not know whether the age of reason should be seven, ten or 12 years. I certainly have my doubts. The Minister was basing his argument on the basis that seven has been the traditional age at which the age of reason is reached. I do not accept that. Some people who are working in the juvenile justice system are very frustrated when they see the spiral of activity that adolescents — people from seven to 14 years — get into because of the way they are treated by the courts. There have been difficulties particularly in relation to females. We are all aware of the case in Dún Laoghaire where the juvenile justice system failed. Justice Wine had nowhere to put the child. We cannot sweep this type of problem under the carpet. We need to make proper provision for such cases. I would ask the Committee to take up this matter. Between now and Report Stage I ask the Minister to come forward with a comprehensive amendment that would signal a substantial shift in policy in this area.
I listened carefully to the Minister's reasoned argument. We have to pay great attention to the arguments he put forward here. There would probably be a consensus that the present age of criminal responsibility — seven — is unacceptable. We will have to think long and hard about how to improve the situation because the Minister is right in saying that there is a degree of public disquiet about crimes committed by children. We have all come up against circumstances where individual children are out of control. We heard of one horrific case at the last meeting. We need to have some sanction, if you like, and some method of dealing with the very few children who are outside the norm and commit horrific acts. I do not think we can be content with the situation as it is and I would hope the Minister would take the opportunity of this Bill to reflect on raising the age of responsibility and putting in whatever framework is required as an alternative, because I think there is a requirement for an alternative.
I understood that this Bill was to be one of a series. We are to have a Bill from the Department of Justice, and perhaps the Minister would indicate what proposals have come before the Government or are currently being considered by Government. It is not acceptable that children of ten or 11 years of age would have a total familiarity with the courts and with the gardaí and would be well on the way to driving a coach and four through the whole system by the time they are early teenagers. There is a major problem to be dealt with here.
The place of detention has been referred to already. There are not adequate suitable places of detention where children could be cared for and taken out of the criminal system. Rather, the few children who are guilty of the offences we are talking about are pushed into a system which puts them on a path of no return. I would hope the Minister would reflect upon the views expressed by Deputy Yates and see if he could come back on Report Stage, or at least indicate to us, that something will come from Government on this issue, if he does not deem it appropriate for this Bill.
Like Deputy Howlin, I think the Minister's stance on this is quite justifiable but to give Deputy Yates his due, I think there is a need for a debate on the whole area of the criminality aspect of children. There is just one other aspect I would mention in that regard. I do not feel that a health Bill, which this is primarily, is the right place to deal with the criminality aspect of children. Since this probably comes within the ambit of the Department of Justice it is to that Department we should be looking. However, there is a need for full debate on this subject.
Another aspect which would not be taken into account in this amendment is whether parents should be held responsible in law for the actions of their children. There is a growing feeling that this should be law. I feel this amendment is too bald and there are many other aspects in this area that have to be dealt with which would not be dealt with in this Bill. If we were to pass this amendment it would have grave implications for most of the criminal legislation on our books and I do not think this could be accepted, even if the Minister wanted to.
Like Deputy Howlin I note the Minister's concern regarding some of the activities of young people. However, I think there is far more public disquiet about the fact that we are living in a country where the criminal age is seven years. There are not many civilised countries with such a law. This is an absolute contravention of the UN conventions and covenants on human rights and children's rights in particular because in a civilised society there is no way a child of seven, or even older, can be seen as a criminal. While at the moment this would seem to be an area appropriate to the Department of Justice, that is exactly what is wrong. One of the things we welcome in this Bill is that at long last we have managed to put the whole responsibility for children under the Department of Health, which is the authority that should be looking after children's welfare.
If there is a sense of criminality among young people, we have to look at what is wrong. It is not the children who are born evil or distorted. Something happens to them during their formative years that leads them to crime. For instance, I attended a crowded meeting organised by the Irish Association of Social Workers recently where the head of a unit in England described the kind of security they gave children — some of them were highly dangerous and could not be allowed out in society because they had committed murder or attempted murder. The social workers saw this as a distortion of the child's personality because of what had happened to him, and not because he was born evil. Instead of criminalising or putting these children through courts, the social workers had them in a secure unit to protect them and others. In the secure unit these children were given love and counselling by highly qualified staff. This system worked. This unit covered the whole of England, and in a community our size, such a unit should not be beyond our resources or our qualifications. In fact, Irish social workers get training in that unit in England. It is incredibly radical and is seen as the correct way to deal with destructive and difficult children.
We should decriminalise the destructive behaviour of children and we should treat it as a health and welfare matter under this Bill. I appeal to the committee to allow not only discussion but an amendment to this Bill raising the age to 14 years and we should then make sure, politically, that we provide the resources for such a unit. Out of a population of 3.5 million, there would not be that many children who would need that kind of real security and who would be so destructive as to need to be held in such a unit. There is an open invitation for any of us, and indeed for the Minister himself, to visit that unit. That is one of the things this Committee should recommend and it would actually answer what this amendment is attempting to do.
I am very sympathetic to the principle of what seems to be involved in this amendment but I am not sure whether the syntax is correct. I am also concerned — and I will agree with the Minister here — that the amendment does not go far enough in explaining what the implications are. However, I am not sure that I would go along with Deputy Barnes when she says that this is the committee that can satisfactorily deal with such an amendment. What is proposed here is something I have agreed with for quite a long time now — that it is very wrong to criminalise the behaviour of seven, eight, ten and 12 year olds, but how we go about doing something about it can be quite complex and there can be very serious implications, some of which have been spelled out by the Minister. For example, he referred to the capacity to commit crime and referred to the age of criminal prosecutability. Look at some of the anti-social behaviour we have seen over the last number of years — such as joy-riding, burglaries, etc. — of very young people. They have the physical capacity to commit the crime but whether they are responsible in terms of their thought processes is quite another matter, particularly at that young age. They are in their formative years, as Deputy Barnes quite rightly said, and I think that has to be very seriously considered.
The children's courts do not seem to be able to deal adequately with this problem and their effectiveness must be called into question — with no disrespect to them — particularly in the Dublin region, in tackling such a serious problem. You cannot talk about raising the age of criminal responsibility without talking about parental responsibility. The two go hand in hand. You can talk about the institutions of the State and State services for as long as you like — and I agree with a lot of what Deputy Barnes said in relation to services that should or could be provided, or must be provided in the future — but I do believe there is a very strong implication here for parental responsibility. If, on the one hand, you say an anti-social act referred to as a crime in law has been committed by a young person and if, on the other, you say that that young person cannot be deemed to be responsible, then you must look to the influencing and formative factors in that young person's life and try to determine, to the best of one's ability in terms of a system, to what extent those formative influences have been wrong, negligent or criminally irresponsible in dealing with those formative years and influencing the child.
Yes, I think it is time we started down this road. It is time we looked very seriously at this matter and, that a national debate was started on the issue of young people, seven years and upwards, being made criminally responsible or responsible in law for their anti-social behaviour. However there are such serious implications in such a debate that I think it is way beyond the capacity of a committee such as ours to address this in a broad and effective way. I would go along with Deputy Barnes' suggestion that this committee should consider making a recommendation to the Minister to carry to Government that such a debate be started.
Like other speakers I have sympathy with Deputy Yates' amendment but it involves so much in the world of criminal law that it is far too simplistic, although it does open up a very interesting debate. There are so many issues involved here that a simple amendment such as this could not cater for the criminal law as it applies to children.
Some speakers have suggested that the acts of children in some way be imputed to their parents. That may seem quite attractive, but let us be realistic about it. You cannot impute the criminal acts of one individual to another, whether that individual is the parent of the child or not. I do not believe it is possible and I do not believe that any court anywhere would accept that you can impute the criminal act of a child to his or her parent. The parent may be practically innocent and the child may not be; the parent may never have been in any way responsible for the child's behaviour. I do not believe it is possible to impute criminal responsibility from one individual to another, and certainly I do not believe it can be done in relation to a child and its parent.
Other speakers have suggested, and I have listened very carefully to them, that in some way a child between the ages of seven and 14 could not be held responsible for a crime because the probability is that it was due to the child's circumstances, that something may have happened in the child's life which led the child to commit criminal acts. I would accept that this is probably true in most cases, but again to face reality, it is also to say that this could be said of adults. It is not a sufficient justification to raise the criminal age of responsibility to 14 because one says that the child may have experienced something in his or her life which led the child to commit a criminal act because that would exonerate adults as well since most adults probably were themselves led into the world of crime because of certain deprivations.
I believe this is an extremely complex area. Society would not accept a situation where children of 12 and 13 years of age went joy-riding and killed somebody. I do not believe society would accept that those children should be exonerated completely and society would not say that this was not a crime because, of course, it is a crime, and a very serious crime.
It is one thing to say that one is going to raise the age of responsibility or capacity to commit a crime, but it is an entirely different thing altogether to say that a crime was not committed, because in any instance where there is an antisocial act, under the criminal law of the country it is a crime and cannot be called anything else.
This is an extremely complex area and I am impressed by Deputy Barnes' argument. It does recognise the fact that an anti-social act has been committed; it does appear to imply that there must be a sanction in relation to such acts, and the manner in which one would proceed is so complex that it could not possibly be dealt with by a simplistic amendment such as this.
I would remind Deputies that most other Deputies on this committee have pressing engagements this morning. I am not singling out Deputy Sherlock, but before you begin, brevity please.
Up to now the debate on the various sections referred to child care, foster care and institutional care and the manner in which this would be undertaken. That is all very well, but we are moving to a different stage entirely when we come to the age of criminality. The amendment is worth while in so far as it will give rise to debate and may initiate debate in another forum and if it does that it would be very worth while. There is a need for it. There are children seven, eight, or nine years of age who need attention and we might be able to do something about that.
It is said there is an exception to every rule. It is very hard to legislate for every eventuality in every situation and every kind of an individual problem that can occur. I have listened to the very fine contributions that have been made on Committee Stage, but particularly on this section and on this amendment.
First, I will deal with a specific point raised by Deputy Barnes. There is nothing in the United Nations Covenants — and we will be coming to them later — in relation to children which deals with the age of criminal responsibility and which affects the age which is in place in this country. Deputy Barnes referred to the provision of secure facilities for children. The question must be asked whether such facilities, which involve the deprivation of liberty, should appropriately come under the aegis of the Minister for Health. My understandiung is that throughout Europe, such secure facilities are the responsibilities of the justice ministries, the major exception being Britain where some secure facilities are provided by the social services. However, even there, facilities for more serious offenders come under the Home Office, which is the equivalent of our Department of Justice. Deputy Barnes has made a very important point that in this Bill we are putting in position a clear structural systematic legal responsibility for the care and protection of children on the Department of Health and the health boards.
Arising from that I would now like to comment on the question of ministerial and departmental responsibility for young offenders. First, the Minister for Health, his Department and the health boards, have a very marginal role in the treatment of young offenders. The Ministers and Departments primarily involved are Justice and Education. The Minister for Justice is involved because of his overall responsibility for law and order and for the administration of justice; the Minister for Justice has responsibility for the Garda Síochána, the courts and the probation service, each of which has a key role to play in dealing with offenders whether they be adults or juveniles.
The role of the Minister for Education and the Department of Education relates to the provision of remand and assessment centres for young persons awaiting trial and special schools for young persons who are convicted by the courts and who are deemed to require custodial care. As I said already, the Minister for Health and his Department and the various bodies under his aegis are generally not involved with young offenders. The health boards sometimes get involved in particular cases where the child or young person concerned is in care or is otherwise known to the health board. This was the position in relation to the girl who appeared before Dún Laoghaire District Court earlier this year. She had been in the care of the health board and it was the board which made special arrangements to care for her. Deputy Yates referred to that case.
What I have outlined are the arrangements that exist in this area. The question of which Minister or Department should have responsibility in the future is being considered by the Government at present and it would not be appropriate for me to comment further on the matter at this stage.
At the last meeting Deputy Yates proposed in amendment No. 193 that it should be an offence for a child — which would be anyone under 18 years of age — to purchase or use a solvent. How does Deputy Yates reconcile that amendment with what he is now proposing? There are major extremes in both proposals. We must try to find a balance between the two. Deputy Yates is suggesting that the age of criminal responsibility be raised to 14 years. I have to say to him again, and I am saying this as fact and not in any other way, that his party are supporting a provision in the Rape Bill which is at present before the Dáil which seeks to abolish a rule of law that a boy under 14 cannot be prosecuted for rape. The reason for this change in the law is that young boys have been involved in rapes and the public have been horrified that they could not be prosecuted for such offences.
Can or cannot?
Under the present law they cannot at the moment but we are hoping to regularise that situation. The reason for this change in criminal law is that young boys have been involved in rapes and the public has been horrified that they could not be prosecuted for such offences. I think there would be widespread public concern if we were to rush into this and change the age of criminal responsibility without putting alternative and effective procedures in place for dealing with such children. We are in a very delicate area of criminal responsibility.
Deputy Sherlock, Deputy Howlin, Deputy Fitzgerald, Deputy Barnes, indeed everybody who has spoken, have made very important points on this issue. This is a Bill to deal with child care and the welfare, well being and protection of children. We are not dealing with criminal law which is primarily a matter for the Department of Justice, and if we were to impose an amendment to the Bill which had criminal effect, the Department of Justice and the whole system of Government and of law and order, would have to respond to what we propose without having given it due consideration. This would be dangerous. It would be a function of the Department of Justice to amend the criminal law and we could respond to that by appropriate amendments to children's legislation.
Consequently I would have to say that our priority must be to deal with the care, protection and well being of children and keep away from this delicate area. We must find a balance between who can be prosecuted, why they can be prosecuted, for what they can be prosecuted and the public good and the public well being, taking into account the age and strength and leaving it, in the final analysis, to the courts to interpret what they think is best. I would not be able to accept the amendment.
The Committee has exhausted all the different angles up to a point. I will withdraw the amendment but I will consider putting down an amendment — perhaps 8, 9, or 10 years of age — on Report Stage. I think there is something barbaric about saying that an eight year old can be a criminal. These children are products and victims of circumstances. Perhaps the situation is different when they reach the early teens, 13 or 14. I also condemn the juvenile justice system. This system requires further analysis and I would agree with the points made by the committee. However, I will come back to this on Report Stage.
I think there is a consensus that it would be within the power of the Committee to make a recommendation. We take the Minister's point about the complexity and sensitivity of this area. Is it possible that this Committee might be able to make a recommendation that might initiate debate, and hopefully action, on it even with the Minister for Justice?
My own opinion is that it would not be appropriate. Our function is to discuss legislation and we are discussing the Bill. We would not be in a position as a Committee, to make recommendations. However we will note the points made by Deputy Yates — that he may bring forward an amendment on Report Stage — and hopefully when we are in the Dáil, we could refer the matter to the Minister for Justice, and let him take it up.
The Minister will note it.
I move amendment No. 196a:
In page 27, to delete "121," in the third column, opposite the reference to the Children Act, 1908, in the second column.
The purpose of this amendment is to delete the reference to section 121 of the Children Act, 1908. Section 121 of the Children Act, 1908 deals with the safety of children at entertainments. It requires the management of places of entertainment, where the majority of patrons are children, and the number of children exceeds 100, to take certain precautions for the safety of the children. It was intended to repeal the section on the understanding that it had been superseded by the enactment of the Fire Services Act, 1981, and regulations made thereunder. Recently it has come to our attention that the section is still referred to in Dublin Corporation's bye-laws for places of public resort. In view of this, it is not proposed to repeal the section at this time. I hope we can have your agreement.
I move amendment No. 197:
In page 27, before the entry relating to the Health Act, 1953, to insert the following:
"No. 25 of 1952. Adoption Act, 1952. Section 31 (2).".
I move amendment No. 198:
In page 5, between lines 6 and 7, to insert the following:
"WHEREAS the child shall enjoy a special protection, shall be given opportunities and facilities by law and other means to enable it to develop physically, mentally, and socially in a healthy and normal manner in the conditions of freedom and dignity.
WHEREAS in the enactment of laws for this purpose the best interest of the child shall be the paramount consideration. The child wherever possible will grow up in the care and under the responsibility of its parents. Society and the Public Authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support: the child is entitled to receive education which will promote its general culture and enable it on the basis of an equal opportunity to develop its abilities.
WHEREAS the best interests of the child should be the guiding principle of those responsible for his education and guidance: the child shall in all circumstances be among the first to receive protection and relief: the child shall be protected against all forms of neglect, cruelty and exploitation.".
This is a very important matter and I think it is true to say that it is the unanimous view of everybody working in the child care area — health board workers, care workers, social workers, foster parents, parents' groups, education groups, teacher parents, and so on — that we would insert somewhere in the Irish legal code an assertion in relation to the view we have of children.
We are aware that, when this Bill has completed its passage through the Oireachtas, there will be certain constitutional question marks over parts of it. We referred to that earlier on Committee Stage. I think it is important that this Preamble be inserted because it is taken from the UN Charter in relation to childrens' rights. Other countries have adopted this United Nations Charter which is a statement of the primacy, respect, care and attention we wish to give to children. It does not override the points made throughout this debate in terms of acting in the best interest of the child. It is exclusive to the detail of the Bill. I would ask the Minister, as this is a unique opportunity to deal with this in this way, to accept the amendment.
I support this amendment and would hope that the Minister will be able to accept it because I think that it is not an aspiration, as Deputy Yates said, it is an assertion, a statement, an indication of what we aspire to, what we see as required from this legislation. When you look at the Preamble — that is, the Short Title — it is very bald, it is very bare, and does not give any substance of what is in this legislation or how this legislation is to be used and interpreted. I know we made the same kind of request in the debate on the Status of Children Act and we inserted a similar provision there. I hope that this is not going to land the Minister with any kind of "down the road" problems. I think it is very important that we should state our case at this point.
In credit to the Minister and the drafters of the Bill, and what has been worked out at Committee Stage, I think this is very appropriate to what is the whole thrust of this Bill. It is what everybody has worked towards. It is an endorsement of the work that went into this Bill. It is an endorsement of the kind of legislation the Minister hopes to bring through the House. The fact that, coming from the United Nations, it is also a declaration that we can share with other countries, gives it a universality we can all support. It is very well worded and aims at what we have been working towards in the Bill.
I am not familiar with Preambles in legislation and when I saw it, I thought it was a good idea to put the whole thing in context. Although Deputy Yates says he expects it to be inserted at the beginning, having gone through the Bill line by line I think in a way it is more appropriate now to have an overview of what we intend. I think it encapsulates what we want well. Quite often words and phrases like this are empty, we can endorse resolutions like this and say we are great and we are going to protect children from cruelty but what would immediately follow is 64 sections enshrining those principles into our legislation. That would be highly desirable if it is technically possible and feasible. I do not know what the Standing Orders say, I do not know what the status of the Preamble would be, but I think it would be very desirable to incorporate it into law.
I support this whole-heartedly. In this country there are young people in their early teens opting out. The Preamble states that parents, society and public authorities should have the duty to extend particular care to children without a family and to those without adequate means of support, but we also have children in families who are not getting the support they need. More emphasis will have to be placed on providing attention, care, training and so forth for young people who have opted out. Some have not even attended a national school, others have opted out of secondary school at an early age and if they attended such schools it was for a very short period. That area requires attention and I think the Preamble to the Bill will help to sort that out and give recognition to that fact.
I do not think any of us has any problem with the thrust of the Bill but I am not too clear about what the Preamble is supposed to do or be. I know it is to be inserted in the short title, and I presume it is just a statement of general principle and that the Bill would follow on those general principles. What legal status has a Preamble in a Bill? If it has no legal status, that is all right if it is just a general statement of principal, but if it has a legal status, then, having gone through the Bill and heard the various arguments at various stages — I think there could be a constitutional difficulty with the second part where "the best interests of the child shall be the paramount consideration"— there is no talk about the role of the family and so on. That is the only question I have about it.
Preambles in legislation are very unusual. They find a better home in constitutions. Strangely enough, I do not think that they are in a happy home in legislation. I say that because if we are to take this Preamble which expresses very noble sentiments — and sentiments which we have been trying to implement in this Bill — we have either failed or succeeded, in drafting and considering the legislation, in achieving what is set out in the Preamble. If we have succeeded in the objective set out in the Preamble, then there is no necessity for the Preamble. If we have failed to achieve the objectives in the Preamble, then the Preamble will do nothing to effect what we were trying to do in the first instance. Accordingly I do not see any necessity for it.
Surely the Bill needs a Long Title. The Title has barely two lines.
This amendment is roughly based on a declaration on the rights of the child adopted by the United Nations some years ago. However, the matter has progressed a good deal since then and the United Nations has recently adopted a convention on the rights of the child which goes further than the original declaration. This is being examined by the Department of Foreign Affairs in consultation with other relevant Government Departments with a view to establishing what legislative and other steps may be necessary to enable the State to become a party to the convention.
The convention goes much further than the old declaration. For example, it refers to the child's need for appropriate legal protection before as well as after birth. It also provides specifically that in all actions concerning children, whether by public or private social welfare agencies, courts, administrative bodies or legislatures, the best interests of the child shall be a primary consideration. Among the rights of the child recognised by the convention are the right to life itself, the right to freedom of expression, the right to freedom of thought, conscience and religion, the right to privacy, the right to protection from all forms of physical or mental violence, injury or abuse, neglect, maltreatment or exploitation, including sexual abuse, the right to an adequate standard of living and the right to rest and leisure. I could go on but I think what I have outlined makes the point that the convention is a much more substantial and far reaching document than the old declaration and that it would be a mistake to enshrine the declaration in law when the Government are actively pursuing the question of ratification of the new convention.
It has been often suggested — and it is something I do not accept — both inside and outside the House, that children have no rights. Everyone in this country, including children, enjoys certain natural or human rights. These rights do not stem from the Constitution or legislation; rather they are rights which we have by virtue of the natural law. The matter was put very well by Mr. Justice Walsh in the Magee case some years ago when he said, "natural rights are human rights, they are not created by law. The Constitution confirms their existence and gives them protection. The individual has rights over which the State has no authority." The Constitution at Article 42.5 refers to the natural and imprescriptible rights of the child. In other words, children have natural rights over and above any rights granted to them under the Constitution.
In recent years the courts have begun to spell out those rights. For example, in a case known as G.v. An Bord Uchtála, 1980, the Supreme Court declared that children share with every individual the right to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion and to follow his or her conscience, the right to life itself and the right to preserve and defend and to have preserved and defended that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.
The Bill cannot be considered in isolation but must be read in conjunction with the Constitution and the various judicial pronouncements about the rights of children and the rights of parents. These judgments make it clear beyond any doubt that children have rights and that these rights are protected by our Constitution.
Deputy Fennell referred to a preamble on the Status of Children Act. There is no Preamble on the Status of Children Act. I think Deputies Dempsey and O'Donoghue have made very relevant points. The legal position is that the Constitution is regarded as the preamble to all our Bills and ultimate Acts of Parliament passed by the Houses of the Oireachtas. That is the position. Consequently, we do not need any preambles like this in Bills. The Constitution is taken as the preamble and the interpretation by the courts and that concludes and clarifies the situation beyond any doubt.
Dá bhrí sin, I will not be in a position to accept this amendment.
Chairman, may I ask you to clarify the position in relation to a Preamble?
According to Standing Order No. 97 (3) "The consideration of a Preamble and title of a Bill in Committee shall be deferred until the sections and schedules (if any) have been considered." That is the only reference to a preamble in Standing Orders. I would say that I do not have a function in deciding whether there should or should not be a Preamble.
The standard position is that preambles must be considered at the end of the Committee Stage.
I think it is significant from what the Minister read out that any rights that he ascribed to children, either natural or human rights, were given to them by the courts, they were not given by the Oireachtas. I think that is significant. In the Walsh judgment he was saying that people had natural rights as human beings. I do not think it is unreasonable for us to set this out. At the end of the day, I would say, apart from the establishment of a national childrens' council, I was lobbyed more on this issue than any other and I will therefore have no choice but to press the amendment to a vote.
May I just speak on a particular point? A number of references have been made to the courts. In the judgment delivered by Mr. Justice O'Flaherty in the Supreme Court, with which the four other judges concurred, he raised the issue of the absence of legal aid in cases concerning the care and custody of children — I would say that this Preamble envisaged the provision of protection and legal aid for children. We must take cognisance of that judgment which called for the modern child care legislation we are now enacting and have written into the Bill that protection. Legal aid for children should be provided.
I think there is general agreement, everybody here can identify with the sentiments expressed in the amendment. It incorporates what this legislation attempted to put into effect. I do not think there is any paragraph or clause in the Preamble that would give any member of the Committee any difficulty. It is most unfortunate that when we are in the final moments of the Committee Stage of the first major piece of legislation dealing with children since 1908 we do not know the legal status of a Preamble. I would again put that question to the Minister. Deputy Yates has indicated his intention to press the amendment to a vote. Will we be voting on something that has a valid legal status or for something that has no legal effect?
On a point of information — the Minister said he felt this Preamble is redundant because there is a new updated UN convention. I would like to know if that convention has a preamble.
I will come back to you on that.
This is the Chair's position, in view of the legal ability sitting around the table, I am not putting myself in the invidious position of giving legal advice.
I would like to clarify a few points. I was very impressed by Deputy O'Donoghue's contribution. He put the point very well, when he said Preambles do not find a real home in Bills. Their place is in conventions and constitutions. Deputy Barnes asked about the United Nations convention. All United Nations conventions have preambles as far as I know, and the one she referred to most definitely has. I can verify that. To answer Deputy Flanagan's point: we know the legal standing of preambles in that it is not normal practice in Ireland to have any major preamble to any Bill. The Constitution is taken as the preamble to a Bill. There is a legal difficulty accepting a preamble as proposed by Deputy Yates. While it is very meritorious and very positive in what it says, without analysing it in any great legal detail, accepting a preamble like this could prejudice the law we have passed in Committee. Later, when it becomes an Act of Parliament and goes for interpretation, perhaps the Bill we passed may not be totally interpreted as providing what is in the Preamble and could create a conflict. As I said, the Constitution is taken as the Preamble in the legal interpretation of Bills if an Act of the Oireachtas has to be interpreted by the courts. That is the basic legal reason we do not have preambles.
I want to make it quite clear that the contents of the United Nations Charter are such that I would be quite happy if they appeared in section 1 of the Bill because they encapsulate what I feel is important in this legislation, but because of the way the amendments are drafted, it was suggested to me that it be put in the Preamble. As far as I am concerned I want this Bill to have real significance. I want to make it clear that many people who have dedicated their lives to the child care area are not satisfied with this Bill. Some of them with a legal background are not satisfied that there is a code of legal rights for children. Nobody has disputed the substance of this amendment and I see no difficulty with it. Whether this amendment is a preamble or included in section 1 does not worry me in the least so long as it is accepted because it encapsulates what I want to see in the Bill. This is more than a point of academic interest. It is a point of substance. I suggest that you put the question.
I think it was the French philospher Montesquieu who said one should never give reasons for laws in laws.
I will respond to Deputy Yates. It would not be appropriate to incorporate something from any convention as part of a Bill in our own country. Once the Government of the day ratifies a convention our laws incorporate that convention. However, in the final analysis, the laws, are interpreted by the courts and effected by the courts, through the Constitution. Consequently it would not be appropriate to take part of a convention and put it into any part of a Bill — that would definitely be in conflict. I have to suggest this in the most positive sincere way I can. I am putting all the information I can before you as best as I can. I suggest that it is not a matter we should be voting on, but if we could find common agreement on it I would be happier and I think we would be doing a much better job. However, it is for Deputy Yates to decide what role to choose, but I suggest that it is not a matter we should divide on.
Is the Minister suggesting a way out of this impasse? Some of the people who are advising me and drafting these amendments had considerable legal advice and were successful in disputing departmental and Attorney General advice and they saw no difficulty with this Preamble.
No marks for guessing who gave the advice and there would be no marks for guessing the Deputy had good legal advice. It was very obvious throughout the Bill that he had good legal advice and I suggest that there is good legal advice beside him; I am happy that I have some on this side also. We are moving to the latter part of the Committee Stage debate. After due discussion we pass laws and interpret them. The Constitution is taken to be the Preamble to all Bills. The Government of the day interpret legally, take advice, have consultations and eventually ratify the relevant conventions. Our laws adhere to those conventions but if there is any conflict our Constitution takes precedence and is the final interpretation by the courts of any particular position pertaining to person, place or thing. I would suggest that the only realistic way out of this impasse, rather than divide, would be to withdraw the amendment.
I am not calling a vote just to be acrimonious. With other spokespersons and Members of the Committee, I must have received about three dozen submissions in relation to this Bill, and this featured in more of them than any other issue. It is for that reason I am pressing the vote.
- Barnes, Monica.
- Howlin, Brendan.
- Fennell, Nuala.
- Sherlock, Joe.
- Flanagan, Charles.
- Yates, Ivan.
- Ahern, Dermot.
- Fitzpatrick, Dermot.
- Coughlan, Mary.
- O’Donoghue, John.
- Dempsey, Noel.
- Treacy, Noel.
- Fitzgerald, Liam.
I suggest that the report of the Committee be as follows:
The Special Committee have considered the Bill and have made amendments thereto. The Bill, as amended, is reported to the Dáil.
Is that agreed? Agreed.
I know the Report Stage probably will be taken in the next Dáil session but in the interim, could the secretary arrange for us to have a list of the amendments and the decisions on them because I do not want to table amendments that were ruled out of order or were voted down?
That list will be circulated to each member of the Committee.
Now that the Committee Stage has concluded could the reports be circulated as soon as possible? Many people are waiting for them.
I would like to personally and sincerely thank all Deputies for their very sincere and positive contributions to the very successful Committee Stage debate. On Thursday, 1 February, we had a meeting between myself and the spokespersons for all the parties and we agreed on a structured way to approach the Bill. On Tuesday, 6 February, the Committee gave agreement to that approach and we gave a commitment that we would conclude the Committee Stage by the end of May. Today is the last day of May and it is a tribute to all Deputies that we have brought the Committee Stage of the Bill to such an expeditious and positive conclusion.
This is very important legislation. We still have a good way to go; we have to take into account the reports of the Law Reform Commission which we anticipate will be made available during the summer. We will respond to the needs of the members as best we can. Whatever information or reports we have, we will make available.
I am a parent and I have learned a lot about child care. This was a very stimulating opportunity for anybody to be involved in a fine committee. I would like to thank the spokespersons of all the parties, the entire membership of the Committee and all the substitute members who attended. I would like to sincerely thank the Chairman, the Clerk and the officials from my own Department who have laboured so hard to ensure that we have the best available information and back-up at all times. I look forward to coming back in the autumn session to bring the Bill through the Report and Final Stages.
On behalf of my party I would like to reciprocate the Minister's comments. I would like to thank members of the Committee for being patient with us on our many amendments. I would like to thank others for their openness and support, and the Minister for his frank explanation and acceptance of, not all points, but some points. I would also like to thank the Chairman and the secretariat who at all times have been most helpful and courteous.
The committee structure for the taking of Bills is an excellent way to deal with them constructively and in a detailed fashion, but I must condemn in the strongest possible terms the total disregard that the media have shown for the work of committees. It is not conducive, given that all of us have busy schedules, that such important work got so little attention. From my own experience, I know that far less important issues in historical terms have got media coverage. We can all get on the front pages of our newspapers if we discuss certain topics but in the case of important work like this RTE do not have the facilities to record what is said here. This matter must be confronted and dealt with.
I would liked to be associated with the remarks of the two previous speakers. I came upon this Committee having looked at the area of child care since I became spokesman for my party three years ago. It is an extremely complex issue. It was a learning process for me, as it was for all of us, to work through this Committee. It has been a valuable experience and we probably will not have too many of them in our parliamentary careers. For that I am grateful to the Chairman in particular. The way you handled this Committee was extremely balanced and open. You gave latitude that probably frustrated each of us at some time. As a result you forged a sense of unity among the Committee that was not broken by party political divides. That is unique and is a tribute to you. I wish to thank the Clerk for his efficiency which was superb at all times. Despite about 15 different other duties that are placed on him, he managed to serve this Committee with great efficiency. It is easy for Ministers to come in knowing they have a majority, to simply be trenchant, abrasive and not listen but that was not our experience on this Committee. I am grateful to the Minister of State for the open attitude he adopted taking on board huge rafts of changes as his obvious objective was to provide the best possible law rather than a law drafted by his Department.
I share Deputy Yates' views in relation to the committee system. Yesterday we had very important legislation in the Dáil — the Industrial Relations Bill where dozens of amendments were not taken. Sections were taken without debate simply because there was inadequate time. I hope the precedent of this Bill and the Committee on the Companies Bill will be adopted by the Government and that many more Bills will be referred to committees. I look forward to the next session. We all can share a sense of pride when this legislation is finally on the Statute Book. I am very glad to have been part of this historic process.
I am very proud that I have been my party's representative on this committee which has been involved in enacting very important and long awaited legislation. As a member of a local health board and a community care committee, I have continually said that this Bill would soon become law and we should be ready for it. I concur whole-heartedly with the other speakers in complimenting the Chairman. One learned from your approach. I would like to thank the clerk and the Minister. One could see at an early stage that the Minister wanted to get on with the debate and that he was prepared to concede on issues that we debated. That was a good indication of his willingness to come up with legislation that has agreement and that will deal with the problems that exist.
I am very happy that we have reached this stage on schedule. I hope we will debate the Report Stage in the autumn. It would appear that when the legislation is enacted it could be costly to implement but I hope that the Minister will be ready to put it into operation immediately.
I would like to thank you all for your good humour and political skills. I saw considerable political skills in operation around this table during the last few months — the way the Bill was discussed, teased out and analysed, how principles were put forward and argued and the way they were accepted on both sides. I could see the Bill changing at each meeting where a common sense consensus was reached. Not everybody got their points of view accepted or won the day but what we are sending to the Dáil is a vast improvement on the original Bill. Finally, I would like to pay tribute to the Clerk whose knowledge of Standing Orders kept the proceedings on the rails.
The Committee concluded its deliberations.