Dáil Éireann - Volume 620 - 31 May, 2006

Leaders’ Questions.

  Mr. Kenny: The sequence of events that has unfolded demonstrates that this Government is a headless band of bunglers. It is time for the Government to come clean and answer questions following the devastation of the Supreme Court decision in respect of section 1(1) of the Criminal Law Amendment Act 1935. The Tánaiste is in the House instead of the Minister for Finance, who we were told would take the Order of Business this morning. It is a week since the court’s decision, which is a long time in politics.

I would like answers to three questions. How many men are in jail in respect of section 1(1); how many men are in jail in respect of section 1(1) and other legislation on sexual offences and how many men are in the system facing charges under this section? In other words, to what degree will Irish society be exposed if all of those men walk, as Mr. A did yesterday?

Section 1(2) of the Act is almost identical to section 1(1) and deals with unlawful carnal knowledge of girls between the ages of 15 years and 17 years. I am advised that a challenge to this section is likely to succeed. If section 1(2) falls in the same way as section 1(1), how many men are in prison based on section 1(2) of that Act and how many men are currently in the system facing charges arising from section 1(2)? Does the black cloud hanging over section 1(2) not mean that there is effectively no offence in place to deter a man in a position of responsibility from having consensual sex with a girl of 16 years or under?

Does the Tánaiste believe the Minister for Justice, Equality and Law Reform when he says that he was unaware of the Supreme Court challenge until he read about it in the newspapers? Is this not incredible? The people do not elect the Director of Public Prosecutions or the Attorney General. Rather, they elect the Minister. The buck stops on his desk for political responsibility in this regard. Do the Department or the Minister for Justice, Equality and Law Reform, to whom we are all knee-high in political contribution terms, not read The Irish Times, which reported this on 13 July last year? Does the Minister not [1490] read the Law Society Gazette, in which a trainee solicitor pointed out in October of last year that this matter must be dealt with? When he wants the ultimate political opinion, does he just look in the mirror? What of the Government’s much vaunted and costly communications unit? Did this matter not get under its radar twice last year?

Will the Tánaiste tell the House what has gone wrong? She must answer these questions in the public interest. This is an issue on which the Government has failed miserably to anticipate, be ready and deal with a gaping hole in current legislation.

  The Tánaiste: I share the outrage expressed by every decent person in the country that a man who plied a young woman with alcohol and pleaded guilty to carnal knowledge of her should walk free in these circumstances. Everyone is rightly concerned that something like that could happen. It is her plight and the plight of young women like her whose innocence has been disgracefully taken away that is our concern.

I do not have all of the data in respect of the numbers requested by the Deputy. There are six persons in jail to whom section 1(1) applies. I will ask the Minister for Justice, Equality and Law Reform to contact the Deputy regarding the other data, which I do not have to hand.

Never in the House has any Government or spokesperson on justice suggested we should change the law and have as a reasonable defence a mistake in respect of age.

  Mr. Howlin: That is not true.

  The Tánaiste: I am informed that no one ever suggested it should happen and no Government ever sought to do it because we wanted to keep the strongest possible laws in place in this area. Recently, the Ombudsman for Children communicated with the Minister that, even now, we should not change the law. However, we have no option but to make a change on foot of the Supreme Court decision.

On the question of knowledge, there was an information deficit. In November and December 2002, the Department of Justice, Equality and Law Reform was informed by the Chief State Solicitor’s office that this action was being taken, but there was no information thereafter. Even in 2002 if legislation had been introduced it would not have had retrospective effect. It should be remembered that even then the DPP was strongly defending these cases right up to the end. People were still being prosecuted on the basis of section 1(1) and the case was won in the High Court in 2004. Even if we had changed the law at the outset of these proceedings, it would not have had retrospective effect. That is the reality. It could not have had a retrospective effect in respect of any person convicted at that time.

As we know, the governor of Arbour Hill Prison will appeal yesterday’s decision, a matter that will ultimately be determined in the Supreme [1491] Court and that will determine whether other persons serving sentences under this section can be released. It is a fact, and it is for the independent judgment of the DPP that it may well be that somebody could be rearrested and charged again in relation to other offences. That is entirely a matter for the Director of Public Prosecutions, not the Minister or anyone else.

  Mr. Kenny: The Tánaiste’s reply shows how out of touch is the Government. Fine Gael has a Bill before the House at the moment, dealing with a register in respect of sentences. The Tánaiste did not have the information in respect of section 1(1) and does not have the information in respect of section 1(2). She has not answered my question about whether she believes the Minister for Justice, Equality and Law Reform when he says that he was not aware of this. Is it not incredible that the Attorney General, whose office was dealing with this along with the Director of Public Prosecutions, who sits at Cabinet and is in constant contact with the Government, especially the Minister for Justice, Equality and Law Reform, would not be aware that this case was proceeding through the Supreme Court and that the Government, on the basis that the Supreme Court would come to this decision, would not have emergency legislation ready to plug the loophole in the law for the future, as distinct from not being able to deal retrospectively with those who were charged under that section which was struck down by the Supreme Court?

Does the Minister for Justice, Equality and Law Reform not know what is going on? Last night on television he said that the DPP continued to lay charges under section 1(1) of the 1935 Act until recent weeks. In the High Court on Monday, however, during the hearing of Mr. A’s case, the court was told the DPP had not sought to proceed with statutory rape indictments and trials had been stayed by consent since last summer pending last week’s judgment. The court was told that on Monday but the Tánaiste is defending the Minister for Justice, Equality and Law Reform who says there was no urgent need for serious legislation, there was no gaping hole in the legal system and that he did not know what was going on. This was reported in The Irish Times and last October a trainee solicitor pointed it out in the Law Society Gazette, but all the legal eagles and officers of both Departments and the Government were unaware of it, even though the Minister for Justice, Equality and Law Reform is the person who says: “I see what I see and I know what I know”.

In addition, will the Tánaiste tell me if the Government has agreed to the Minister for Justice, Equality and Law Reform’s proposal to reduce the age of consent for girls from 17 to 16? I put her on notice that my party does not support that proposal. The immediate priority is to plug [1492] the gap in the law that now exists. The broader debate can be left to another day.

What day will the Dáil meet next to deal with this emergency legislation — Tuesday, Wednesday or Thursday?

  The Tánaiste: Of course I believe the Minister for Justice, Equality and Law Reform. Neither the Minister nor the Attorney General had any personal knowledge of this case.

  Ms Burton: That is really bad.

  Mr. J. O’Keeffe: The Attorney General was party to the case.

  The Tánaiste: It is important that we move beyond party politics and deal with the issue.

  Mr. Allen: It was not beyond politics when people were leaking documents.

  The Tánaiste: The public wants to see us address what has arisen in a comprehensive fashion. The Government was briefed yesterday by the Minister for Justice, Equality and Law Reform and the Attorney General on the legal situation. We discussed various options and the intention is to have legislation later this week. The Cabinet sub-committee will meet the Attorney General later today to deal with the issue and the intention is that the Dáil will sit on Wednesday to deal with the legislation.

If this was so obvious to everyone, why was it never raised in this House? Let us be real.

  Mr. McCormack: The Government is responsible for such things.

  The Tánaiste: I know of no Government that has legislation in the drawer ready to be implemented because a matter is before the High Court or Supreme Court. We won the case in the High Court and it was not anticipated that it would be lost in the Supreme Court. Even if that had been anticipated, we would have had to wait to see the Supreme Court ruling to draft the appropriate legislation, which must be constitutional. It would not make sense, given the difficulties that have arisen, to bring in a faulty Bill. The Government will take the best advice available from the Office of the Attorney General and other counsel on the legislation and we hope it will be ready later this week.

No decision has been made on the consent issue or the detail of the legislation. Yesterday was a briefing by the Minister for Justice, Equality and Law Reform and the Attorney General. The legislation will follow later this week.

  Mr. Rabbitte: I am immensely disappointed by what the Tánaiste has just said. She seemed to assert that it would be unreasonable for Government to have anticipated the striking down of this particular section. How in heaven’s name can she [1493] say that? Twice in May 2005, as I said in the House last week, legislation was rushed through in one day. That legislation was ready to go. To say that, on something as important as the protection of our children, no one was riding shotgun and that the Minister for Justice, Equality and Law Reform — the nightwatchman — fell asleep on the job is beyond belief.

The public are staggered by the incompetence and lack of care displayed by the Government in this case. The Tánaiste is not well briefed. She was drafted in at the last minute last night to replace the Minister for Finance but it is untrue to say that no one offered the defence of honest mistake, something the Taoiseach repeated yesterday morning when he said, “Responses to the invitation for views disclosed no appetite for change among those who expressed views on the paper”, referring to the discussion paper published in 1998 by the previous Minister for Justice, Equality and Law Reform. Of course they did. I have the Labour Party submission with a summary of proposals on the first page. It states that we also accept the Law Reform Commission proposal that there should be a defence of reasonable mistake in relation to unlawful carnal knowledge. We made that submission in December 1998 but the discussion paper never went anywhere. It ran into the sand.

The Tánaiste is wrong. I accept she is not misleading the House, she was just badly briefed. There is no point flapping here about partisan politics. She should have a word with the Minister for Arts, Sports and Tourism beside her. If a letter went missing in the Department of Justice, Equality and Law Reform, he had the House in uproar. In this case we are talking not about a letter going missing but about our young people being at risk and a gaping hole arising in the law. The Government, however, displays a laid-back attitude and claims that it did not know about it.

The Minster for Justice, Equality and Law Reform says this is the responsibility of the DPP. That is grossly unfair. The DPP does not have a weekly slot on “Today with Pat Kenny” to defend himself. How can the Minister for Justice, Equality and Law Reform claim that he and his Department had no knowledge, despite admitting there are channels of communication on such major issues?

Those Fianna Fáil backbenchers who have broken ranks on this issue and those in the divided Cabinet are right. They should support the Labour Party Bill we published yesterday which permits the reinstatement of the status quo plus the defence of honest mistake. It is the interim legislation that is needed to protect us. While we are having the interesting debate about the age of consent and gender neutrality, which is complex and will take time, we need interim legislation to protect our children. Our Bill achieves that.

The Government misjudged this on a gargantuan scale. There is no doubt about that. The [1494] Minister for Justice, Equality and Law Reform said to Pat Kenny:

Then we have to ask ourselves do we want to protect 15 year olds from randy 23 year olds, if I can use that phrase. It is not an easy one to legislate for on the back of a beer mat.

I agree, it is not an easy one to legislate for on the back of a beer mat and, for that reason, we should close the loophole in interim emergency legislation. I want the Tánaiste to say to the House that the Bill will not be published on Tuesday of next week and enacted on Wednesday. The Opposition is entitled to be consulted about this. The 1935 Act was taken in secrecy in this House.

  An Ceann Comhairle: The Deputy’s time has concluded.

  Mr. Rabbitte: It was considered inappropriate at the time to debate these matters in public and that is what we get from this kind of legislation. We do not want to be presented with legislation that we are supposed to enact when there is no room or tolerance of amendments. I ask the Tánaiste if the Opposition will be consulted before the weekend. What day will this House reconvene to enact this legislation? Does she not accept that of all the reputation this Cabinet has acquired for incompetence, this is the most grave dereliction of duty on behalf of Ministers collectively and the Minister for Justice, Equality and Law Reform in particular? Does she believe that the Minister for justice across the water would be still in office?

  Mr. Durkan: No.

  Mr. Rabbitte: Does she think in any other democratic assembly the Minister for justice would be still in office——

  Mr. Durkan: He would be gone.

  Mr. Rabbitte: ——as a result of something of the gravity of a 12 year old girl being fed drink and then subjected to sexual relations by an adult male? What about the horror cases coming down the line?

  An Ceann Comhairle: I ask the Deputy to give way to the Tánaiste. He has used almost the full seven minutes allotted to this question.

  Mr. Rabbitte: Is there any accountability in this Government for any of the errors it makes?

  The Tánaiste: First, in case there is any misunderstanding, the reason I am here this morning is because of the importance of the issue. As the Deputy is aware, it is tradition when a Head of State visits the country for the Taoiseach to meet that Head of State and I was due to do it in his absence. That is the reason for the change in who took the Order of Business.

[1495] Second, regarding the Law Reform Commission report, the Law Reform Commission drew attention to the fact that we had very conservative legislation on this area. It did not say it was unconstitutional and notwithstanding what the Deputy said, it was never proposed by any Deputy on the floor of this House that we introduce the defence of reasonable mistake. I suspect, and I am being honest about this, that if any Deputy had done so he or she would have been accused of writing a paedophile charter. That is what would have happened. They would have been accused of watering down the strong legislation and I do not believe any Deputy would have done it. That is why it never happened.

Furthermore, it is wrong to say or imply that the Supreme Court has over-ruled all our legislation in this area. We have strong legislation regarding rape and sexual assault, and that still stands.

The Opposition will be consulted later this week. It will not be a question of the Bill being produced on Tuesday and a debate on Wednesday. As the Deputy has acknowledged, this is a very complex area and already this morning a legal expert has cautioned us to be careful about this legislation. We do not want, for the sake of rushing legislation on one day rather than another, to get it wrong and have another mistake created in a few weeks from now. If it takes a couple of extra days in which to get it right, I believe genuinely that is what the public wants to see us do and that is what we will do.

Regarding the Director of Public Prosecutions, the carriage of this case was jointly between the Attorney General and the Director of Public Prosecutions.

  Mr. Allen: That is a change.

  Mr. Rabbitte: That last point is another correction of the Minister for Justice, Equality and Law Reform. The Minister plainly said yesterday evening that the carriage of this case was the responsibility of the DPP. He said he knew nothing about it, that the Attorney General personally knew nothing about it and that he could not say if people in the Attorney General’s office knew about it. It is about time the Government got its act together. There are only two Progressive Democrats Ministers at the Cabinet table and they are divided. How many divisions are on that side of the House?

Anybody who heard the interview this morning on The Gerry Ryan Show with the mother of this young girl can be under no doubt about the seriousness of this situation. I do not want to give legs to what the woman said but those Members who did not hear it, and the Minister for Justice, Equality and Law Reform in particular — I ask him to get a transcript of it — cannot be under any doubt about the gravity of the situation that confronts that family. In those circumstances, for the facts to continue to be dribbled out in the [1496] fashion we are now getting them is simply not good enough.

I want to hear from the Tánaiste. On the question of the points she made, that is our submission. The man sitting beside her published the discussion paper in 1998.

  The Tánaiste: It was never proposed here.

  Mr. Howlin: And was formally written to.

  Mr. Rabbitte: The Law Reform Commission said the existing law was too harsh. A number of legal experts, including Tom O’Malley, had adverted to this issue in public.

  An Ceann Comhairle: The Deputy’s time has concluded.

  Mr. Rabbitte: The Law Society Gazette dealt with it recently and those of us on this side of the House are to believe that nobody in Government knew of this issue or anticipated the gravity of it. The Tánaiste presents it to us as if it were some kind of exculpatory assertion by her to say the Minister did not know. If the Minister did not know, he ought to have known. Charles Clarke did not know either and he is kicking his heels on the back benches now. The Minister ought to have known on a matter of this important gravity.

Can we have a clear statement from the Tánaiste about the convening of the Dáil next week? I thank her for the commitment to consult with the Opposition on this legislation but we need to know when we are meeting next week. We need to know if there is any clarity in Government concerning whether we are moving to shut this loophole or attempting to deal with the wider questions that are given rise to as a result of the Supreme Court decision. We need clarity on that. Are we moving to shut off the loophole or is the Government seeking to address issues and questions that I agree are complex and on which we need a public debate? In the interim, however, the parents of this country——

  An Ceann Comhairle: The Deputy’s time has concluded.

  Mr. Rabbitte: ——want to know that a person in authority cannot coerce a young girl to have sex in the manner that has been described in this particular case. Parents want to know that a person in authority cannot coerce a young girl in those circumstances and that it is not illegal. That is the position and we need clarity on it.

  The Tánaiste: I share the view of parents. Of course they want strong legislation in this area. The Deputy has acknowledged that his party took the view that the legislation was too harsh. I suggest the vast majority of people wanted to maintain harsh legislation in this area. It stood the test of time for 70 years. It was upheld in the High Court in 2004. That is a fact. I do not believe there would have been a will in this House to [1497] change what was called harsh legislation and make it more liberal in this respect. I do not believe the political will would have existed to do that.

  Mr. Rabbitte: That is not the point we are making. The Tánaiste is twisting it.

  Ms Burton: The Law Reform Commission said there was a problem with the legislation.

  An Ceann Comhairle: Allow the Tánaiste to reply, please.

  The Tánaiste: The Law Reform Commission said it was too conservative and too harsh. It did not say it was unconstitutional.

  Mr. Howlin: As did the then Minister, Deputy O’Donoghue, in this document.

  Ms Burton: The Tánaiste is twisting it.

  The Tánaiste: I am not twisting it.

  An Ceann Comhairle: Deputy Burton, Deputy Rabbitte is quite competent to deal with the questions.

  The Tánaiste: People want the strongest possible legislation in this area and we have that in the main in respect of many of the Acts that still apply and have not been overruled by the Supreme Court.

The decision of yesterday is being appealed to the Supreme Court. I said earlier that it is completely a matter for the judgment of the independent officer, the Director of Public Prosecutions, as to whether any persons so released can be re-arrested, re-charged and prosecuted for different offences. That is a matter for him and that may or may not happen. I do not know; it is not a matter for us.

  Mr. J. O’Keeffe: Has the Tánaiste heard of double jeopardy?

  The Tánaiste: I repeat that the Dáil will meet next Wednesday. The Whips will discuss at 7 p.m. this evening the logistics for taking the legislation and the Minister for Justice, Equality and Law Reform will consult with Opposition spokespersons later this week regarding the matter.

  Mr. J. Higgins: I and the Independent Deputies want the Dáil to meet next week for a comprehensive discussion on these issues. The Tánaiste’s Government is now a hobbling paragon of incompetence, exceeded only by its arrogance. This week it was forced to back off from bullying FÁS workers into involuntarily decentralising to the constituency of the Minister for Finance. Some time ago, when the Tánaiste could bluster no longer on the health crisis, she admitted it was a crisis. Last week, we heard a slight bleat from her about the situation in the “to be decentralised” [1498] State agencies, where 56 out of 2,500 workers only are prepared to decentralise and 158 out of 1,200 specialist and technical staff only are prepared to go. The Government has taken a valid idea, a necessary policy of balanced and equitable regional development, and turned it into a mockery and a shambles with a cynical and opportunistic approach. We are left with a mess this week.

11 o’clock

Communities in the regions throughout the country have been abused and given the impression that 10,000 public sector workers would be arriving in a short time to boost their local economies, a valid aspiration on their behalf. It was a cheap and opportunistic stroke with no prior planning, preparation or consultation. Mindful of the media fascination last week with the Taoiseach’s facial arrangements, I can only equate the mess of decentralisation with a botched make-up job. It was slapped on in a hurry, there was no foundation, with blobs of paint which everyone could see through.

  Mr. F. McGrath: Hear, hear.

  Mr. J. Higgins: Admittedly, there was no blusher, as this Government is incapable of blushing.

  Mr. F. McGrath: There goes the blusher, Deputy McDowell.

  Mr. J. Higgins: The Minister for Justice, Equality and Law Reform seems to have applied a shade of purple this morning.

  Mr. Durkan: He is gone to consult Pat Kenny.

  An Ceann Comhairle: The Deputy’s time is concluded.

  Mr. N. Dempsey: Is there a request up there?

  An Ceann Comhairle: Deputy Joe Higgins, without interruption.

  Mr. J. Higgins: Inevitably, in the first glare of searching lights the whole thing disintegrates into running rivulets. They could be wet boreens around Caherciveen. The Government has put in charge of this a colleague of the Tánaiste, a Minister of State whose first thought was to show up in his constituency in Offaly thinking that he had been cast to play a bit part in a remake of the man from Marlboro. Now he believes he is a real estate hustler playing Monopoly with the taxpayers’ property and money, having alerted every speculator in the country who have now doubled and trebled the price of land around the regions.

  Deputies: Hear, hear.

  Mr. P. McGrath: The land was in public ownership until a few months ago.

[1499]   Mr. J. Higgins: Is it any wonder that this opportunistic and cynical approach would leave communities throughout the country cheated? Is it any wonder that it would leave thousands of public sector workers about as enthusiastic for it as veteran Fine Gaelers dragooned into playing the anti-treatyites in “The Wind that Shakes the Barley”?

  Mr. Allen: At least we won the Eurovision.

  Mr. Treacy: Fine Gael should watch its back.

  Mr. J. Higgins: What does the Tánaiste say to these communities this morning? What does she say about State agencies, the professional and specialist staff? What does she say to the thousands of public servants who have opted to leave but now find themselves in limbo? May we have an honest debate from the Government, for a change, on the mess which has been created?

  Mr. F. McGrath: Hear, hear.

  The Tánaiste: I am delighted the Deputy is so knowledgeable about make-up and foundation, but one can now get all-in-one and a person does not need both.

  Mr. P. McGrath: We cannot get it from this Government.

  The Tánaiste: The Government is committed to its decentralisation programme.

  Mr. Stagg: As amended.

  The Tánaiste: It has not been amended.

  Mr. Stagg: It has.

  Mr. McGinley: It has been amended for the next general election.

  The Tánaiste: The intention is that FÁS will be decentralised to Birr around Easter 2009. I acknowledge and repeat the fact that if a person works for one of the State agencies, there is no possibility of moving into the Civil Service or another State agency.

  Mr. Rabbitte: Was that not approved with Mr. McCreevy?

  The Tánaiste: No.

  An Ceann Comhairle: The Tánaiste, without interruption.

  The Tánaiste: Decentralisation is clearly voluntary.

  Mr. Stagg: It is now. It was not so last week.

[1500]   The Tánaiste: It has always been voluntary and it is also very popular.

  Mr. M. Higgins: That is news also.

  The Tánaiste: One of the most frequent questions I am asked by many civil servants is when it will happen.

  Mr. Martin: Everywhere I go it is the first question I am asked.

  An Ceann Comhairle: The Tánaiste should be allowed to speak without interruption. The Minister should allow the Tánaiste to speak without interruption.

  The Tánaiste: With regard to specialist staff, the Government very successfully decentralised the Marine Institute to Galway, and all but two of the staff moved in that decentralisation programme. It is not the case that professional staff with expertise in a particular area are not prepared to move to locations outside Dublin.

  Mr. J. Higgins: I suggest the Tánaiste start by taking the Minister of State at the Department of Finance, Deputy Parlon, away from responsibility for decentralisation. Maybe he could be put in charge of the Taoiseach’s make-up department. The eye shadow might finish up on the Taoiseach’s chin and the rouge on his ears.

  Mary Coughlan: The Deputy is very old-fashioned.

  Mr. J. Higgins: At least he could not do much damage in that role with regard to the economy, the country and regional development.

This is a crucial policy of regional development which is very important to communities throughout the country as well as to Dublin which suffers from the terrible mess of traffic congestion etc. Applied in an organic and principled way, it could be a very positive policy for the people. It could improve public services and help communities. In the way this Government has approached it, bringing it forward as a cynical, opportunistic local election stroke, it has been reduced to the existing shambles.

Will the Government allow this Dáil to have a comprehensive debate on the matter? Will it, for a change, come in honestly and put in front of the Dáil and the people of the country a method of proceeding in a proper, planned and realistic way? This would satisfy the needs of balanced and devolved regional development, as well as protecting the rights of public sector workers who have been used cynically as pawns.

  The Tánaiste: We wish to ensure that, on one hand, the decentralisation programme is done in a way which delivers effective public services. It should be done voluntarily and there should also be balanced regional development. Like many of my predecessors and my successor as Minister for [1501] Enterprise, Trade and Employment, who have tried to convince some of the world’s largest corporations to locate in regional areas of this country, I believe there is nothing wrong with the Government exemplifying this. It is achievable. A debate would be a good idea and the Deputy should discuss it with the Whips.