Willie O'Dea (Limerick East, Fianna Fail)

I want to dispel the myth that has arisen since the Supreme Court decision was handed down that the Government knew something and, if it did not know, it should have known, and if it knew what it should have known, it could have done something about it. That is a sham and Deputies on all sides of the House are cognisant of that.

What could the Government have known? What should it have anticipated? Was it that section 1(1) of the Criminal Law (Amendment) Act 1935 was unconstitutional? This legislation was reviewed several times a year by the Judiciary. Dozens of people were sent to prison for long terms by the Judiciary based on the provisions of section 1(1) of the Criminal Law Amendment Act 1935. None of those judges so much as hinted that there was a taint of unconstitutionality attaching to that section. How, then, was the Government to anticipate this?

We are told that we were warned by the Law Reform Commission in 1990. That is a falsehood. The 1990 Law Reform Commission report stated that the section was harsh. The law was rough on paedophiles and predators. There was never a hint that it was in any way unconstitutional.

In desperation, when we disposed of those arguments, we were told someone wrote an article in the Law Society Gazette. Academics write articles in gazettes and journals all the time. I did it myself when I was in the academic world and every time I cast doubts on legislation, I did not expect the Government of the day to galvanise itself to decide what to do with a possible difficulty with some obscure section of legislation.

When that argument foundered, the attack switched. Now, we are told the Attorney General and Minister for Justice, Equality and Law Reform should have known something, presumably that the appeal had been lodged. They certainly knew about the case when it was challenged in the High Court, and it decided the law was perfectly constitutional. Subsequently, an appeal was lodged. I concede that, as a matter of courtesy, someone in the Attorney General's office might have mentioned to him that the appeal was in train. Someone might have mentioned it to the Minister for Justice, Equality and Law Reform as a matter of courtesy but there was no other reason to mention it to him because nothing had changed. The case was fought assiduously by the State up to High Court level and it won.

On appeal, the same procedure applied and the State's lawyers were striving to ensure the State would also succeed at Supreme Court level. If the State's lawyers had seen something that indicated to them that the appeal should no longer be defended, that should have been brought to the attention of the Minister for Justice, Equality and Law Reform and the Attorney General because it would be a matter of grave import. Courtesy aside, there was no reason to mention the fact to the Minister or the Attorney General short of that.

The follow-on argument is that, if the Minister or Attorney General had known, they could have done something about it. A greater authority than me in this area is Michael O'Higgins, senior counsel, one of the leading lights of the Bar and who has no connection with either party in this Government. He was asked on RTE on Wednesday afternoon, if the Minister or Attorney General had known, could they have done something about it, and he replied, "No". Pauline Walley, who has prosecuted several rape cases, gave the same answer to the same question on "Prime Time". Legal experts agree that the Attorney General and the Minister could have done nothing about it. I fail to see the grave difficulty with the Minister for Justice, Equality and Law Reform or the Attorney General not knowing about this when every legal expert freely admits that, even if they had known, they could have done nothing about it.

The suggestion was repeated this morning that perhaps they should have done something about it and that we should have been prepared. This is an extraordinary proposition if one considers it closely. When legislation is challenged and the State defends it up to and including Supreme Court level, there are two possible outcomes — the State will win or lose. If the State wins and the constitutionality of the legislation is upheld, there is no need to do anything.

The proposition now being advanced is that we should always assume the State is going to lose, deploying our resources to prepare legislation in the event of such a loss. It should be borne in mind that a Supreme Court decision can go in many different directions and have many variations. It can require the Government of the day, as a result of the decision, to carry out various actions or deal with the legislation in an infinite variety of ways.

Is it being seriously suggested we have a type of system where we are supposed to anticipate all possible outcomes of every Supreme Court challenge to legislation, and have many pieces of legislation ready in the event of the outcome going against the State, which will always be assumed? If the Supreme Court hands down the adverse verdict, are we supposed to push a button on a machine and an appropriate piece of legislation will pop up like a piece of toast, ready to be put into action immediately?

That is an extraordinary proposition. There are dozens of cases before the courts where the Constitution is an issue. If a court decided a matter was unconstitutional, many of them would have the gravest possible implications. Is the Minister for Justice, Equality and Law Reform and the Attorney General supposed to deploy an army of staff to look at these cases, try to anticipate the various outcomes and provide for them in advance? This is only to be stated for people to realise how absurd it is.

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