Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

I move amendment No. 2:

In page 14, between lines 9 and 10, to insert the following:

"(3) The coming into operation of Part 13 shall require the approval of both houses of the Oireactas, Oireachtas approval shall be requested only after a review of the implementation of the Children Act 2001 has been completed and laid before both houses 5 years after all sections of the 2001 Act become fully operational.".

This amendment tries to ensure the Children Act 2001 is implemented. The Act was progressive and was passed with all-party agreement. It was the culmination of a long debate in the sector, which resulted in agreement that its provisions represented the way forward. However, until recently many of its provisions were not delivered upon and most had not even been activated. Now anti-social behaviour orders, ASBOs, are to be introduced, despite the fact that we had already agreed a mechanism to deal with child and youth justice issues. It is not that the existing procedure does not work but that it has never been tried and tested by being made operational. If something is not broken there is no need to fix it but the Act in question has not been implemented, whereby we could judge whether it was capable of working on its own. If it had been operational for the five years since it was passed in 2001 we could make the determination that it was broken and that it was incapable of solving the problems of anti-social behaviour in our communities, which prevents our citizens from enjoying the quality of life they deserve. The Bill proposes a regressive measure on top of legislation which already exists.

This amendment requires a review of the implementation of the Children Act 2001 before Part 13 of the Bill comes into operation. On Committee Stage I suggested the review period should be ten years. That might be too long so I have rowed back and now suggest five years, which is a reasonable time in which to determine whether the operation of the Children Act is successful. Provided it is fully funded, ASBOs for children should only be considered after its operation for five years. While Sinn Féin is fundamentally opposed to ASBOs, our amendment would ensure they would only be introduced with Oireachtas approval, after the review referred to.

The ASBOs provisions allow for the serious and open-ended curtailment of some of the most fundamental rights of individuals. They are disproportionate and it is well documented that the principles that underlie them are inconsistent with the European Convention on Human Rights and the UN Convention on the Rights of the Child. They may also be unnecessary as we already have a raft of legislation to deal with crime, which needs to be implemented. If the Children Act 2001 were implemented perhaps ASBOs would not be necessary.

We do not need more legislation but more resourcing and the implementation of existing provisions. ASBOs have been proven to fail in their stated purpose, namely to reduce anti-social behaviour, in other jurisdictions. Studies in Liverpool demonstrate that ASBOs extend the discriminatory powers of police without improving accountability. They provide for the naming and shaming and the criminalisation of young people, the fast-tracking of young people into prison and the undermining of due process by allowing hearsay evidence. The Minister has not produced any evidence to show that ASBOs actually work. We were lobbied heavily by a number of organisations that work with children or have human rights viewpoints, such as the Irish Youth Justice Alliance, the Human Rights Committee and the ICCL, which all raised major concerns about these retrograde steps. The Irish Youth Justice Alliance, a coalition of organisations and individuals who work towards reforming the juvenile justice system, outlined key problems with anti-social behaviour orders and their adoption by our society. Those issues included the fact that ASBOs involved the imposition of penal sanctions for the breach of an order made in civil proceedings, in which regard they were inconsistent with the European Convention on Human Rights. The conditions imposed by ASBOs may involve disproportionate interference with personal and private rights and civil liberties. Breach of an ASBO is a criminal offence but because an ASBO is a civil order the rules of evidence are reduced and the burden of proof is on the balance of probabilities, rather than beyond reasonable doubt. This constitutes the denial of the right to a fair trial. As regards criminal proceedings against children in particular, the normal safeguards should be augmented, not diminished.

I have gone through many of the arguments and presentations that have been made at committee meetings by such groups. They hold firm even after the Minister mellowed somewhat concerning anti-social behaviour orders for children and introduced some amendments. I am still of the opinion that we should not proceed down this route. That is why I request that, at the very least, we should introduce this review mechanism for the Children Act after five years of operation. Obviously, it must be fully resourced and implemented.

See this speech in context