Brendan Howlin (Wexford, Labour)

The offence we are seeking to re-enact this evening has had a curious legislative history that I had the opportunity to re-examine today. It seems, when one reads over the enactments, to have been characterised by some fundamental errors as to its purpose. It is, however, a serious offence — the offence of soliciting or importuning a child for sex. It is an offence which I do not believe is a minor one, and one which I believe every citizen would regard to be a serious matter.

When I say there were fundamental errors over time in its purpose, I do not expect to hold the current Minister for Justice, Equality and Law Reform responsible for the errors of his predecessors. However, he has a responsibility to account for the current state of affairs. To be fair, in his opening address, he very fairly accepted responsibility, although pointing to everybody else who could have shared it. However, the onus and responsibility lies with the Minister for Justice, Equality and Law Reform, who brings legislation before the House.

It is worth noting that the legislative history was characterised by four guillotined debates, of which tonight's is but the latest. As a result, the section in question was never adequately scrutinised or debated by this House. The offence dates back to 1993, when the then Minister, Mrs. Máire Geoghegan-Quinn, introduced the Criminal Justice (Sexual Offences) Act of that year. That Act was primarily concerned, in agreement with the Labour Party, with abolishing the offences which criminalised homosexual behaviour between consenting adults, but, consequentially, amendments were required to deal with prostitution and soliciting.

The then Minister, Mrs. Geoghegan-Quinn, speaking in the debate on 23 June 1993, stated:

I have . . . taken the opportunity in the Bill to revise and update the law in relation to prostitution and related offences. Section 6 creates a new offence of soliciting or importuning for purposes of the commission of a sexual offence. The offences comprehended by the section are those under section 3, 4 or 5 of this Bill and sections 1 or 2 of the Criminal Law (Amendment) Act 1935. This section will replace section 1(1) of the Vagrancy Act 1898, under which it was an offence for a male person in any public place to persistently solicit or importune for immoral purposes.

Section 6 will protect young persons and mentally impaired persons from being solicited or importuned for sexual purposes, whether heterosexual or homosexual, and whether the person soliciting or importuning is a male or female. It does not matter whether the soliciting or importuning takes place in a public place or not as the type of offence that could be committed could well be committed in a private residence. We are all aware that some child sexual abuse is committed by neighbours or friends of the parents of children who are abused and quite often the potential abuser will solicit or importune the child in his own home or even in the child's home.

It was clear from Mrs. Geoghegan-Quinn's speech that she believed section 6 had nothing to do with prostitution and that the offence was broader in its scope. Hence the reference she made to neighbours and friends. However, for such a serious offence, the penalties, as the Minister rightly stated, were minor and the offence was summary. It is not as if it was a minor offence like loitering. This was a mistake.

There was no clarity on the thinking behind the section because it was not reached due to the guillotine. In any event, the new offence was prosecuted. In one year, 2000, there were 55 prosecutions and 34 convictions — that year is as far back as the record can go. Some 40 of those prosecutions were in Dublin, with 15 in the south east, and, interestingly, there were no prosecutions in the other regions. Then, in 2001, an amendment to the 1993 Act was made by section 250 of the Children Act. This amendment repeated, more or less exactly, the words of the 1993 Act introduced by Mrs. Geoghegan-Quinn, but with the insertion of one new phrase, "(whether or not for the purposes of prostitution)". The offence would now read that "a person who solicits or importunes another person (whether or not for the purposes of prostitution) for the purposes of the commission of an act which would constitute an offence" is guilty of an offence. It seems the amendment was designed to make it crystal clear what was intended in 1993, namely, that the offence had nothing to do with prostitution and everything to do with protecting children against exploitation.

I read the explanatory note that accompanied the Children Act 2001 but, bizarrely, it stated the exact opposite. The explanatory noted stated: "Section 250 proposes a new offence which provides a higher penalty for soliciting or importuning a child for the purpose of prostitution". This is bizarre. In fact, the section did not create any new offence and merely restated the 1993 offence. Again, the section was not debated or referred to on any Second Stage or Committee Stage debate, and the debate itself was guillotined. If the Minister has access to the briefing notes prepared for that debate, he should explain to the House whether the draftsman was correct or whether the author of the explanatory memorandum was correct, and what was intended.

Whatever the reason for the confusion, the enactment of the amending legislation seems to have coincided with a dramatic reduction in prosecutions for the offence, a point on which the Minister has taken many opportunities in the past few days to present this as being a minor offence. I do not know why, but since the enactment of the Children Act 2001 this offence seems to have fallen away. Part 12 of the Children Act, which includes section 250, came into operation on 1 May 2002. The Garda annual reports show that from 55 prosecutions the previous year, there were just two prosecutions in 2001, none in 2002, two in 2003, none in 2004 and none in 2005, the last year for which we have published data. There is no explanation in the reports as to why there was a sudden fall off in prosecutions from more than 50 cases a year to virtually none. Why did this happen? It is hardly as if the practice ceased or the behaviour stopped.

As I have said, the main thrust of that amendment was to broaden the offence by making it clear that the soliciting and importuning did not have to be connected in any way. This was the intention in Ms Geoghegan Quinn's 1993 Act but the later amendment made the position crystal clear. In reality, however, that clarification or expansion never had the effect of leading to more prosecutions. In fact, since the 2001 Act, prosecutions under this offence have largely dried up, as the Minister pointed out. There may have been a change in either policing or prosecution policy following the 2001 amendment. If so, who made that policy decision and who had authority to issue a directive that an offence should not be prosecuted? Perhaps it is simply a matter of recording information differently but I would be interested to hear the view of the Minister as to what he regards as a serious enough offence to require the introduction of emergency legislation to reinstate, and why, having had a record of prosecution from its initial enactment in 1993, prosecutions should dry up in recent times.

We then had the third guillotined debate, which was on the emergency legislation introduced last year. When that legislation was brought to the House, there was an interesting debate, which I reread today. It is enlightening to reread it in the light of yet another emergency enactment to protect children being presented to the House. As I said during the debate last year, from the time the Supreme Court delivered its original judgment the Labour Party position was crystal clear, namely that temporary legislation should be introduced to close the loophole caused by the Supreme Court decision relating to the 1935 Act. Unfortunately, the Government rejected the Labour Party's careful, staged and reasonable proposition and the Minister for Justice, Equality and Law Reform introduced a single measure which went well beyond the requirement to close the loophole in the 1935 Act. I said at the time that the Minister was introducing a permanent measure without a sunset clause and if that approach was to be taken it must be with great care. In several fundamental areas the Bill he introduced fell far short of that standard.

The Minister said he had been thinking overnight on the subject and introduced amendments accordingly. That is no way to introduce fundamental law, particularly law that protects our children. We face emergency legislation yet again because we never had the time to properly scrutinise the measures involved. The Minister is correct to say we need a consolidation Act to reinstate in a joined up, clear way all the enactments to protect children against sexual deviancy and predation. It should be done as a matter of urgency and I am aware work is under way in the Minister's Department in that regard.

I will not rehearse the full debate because I do not have time but much of it bears repeating tonight. I said that rushed law was normally flawed, if not outright bad law. I said the Bill attempting to address the requirements of the constitutional decision of the Supreme Court was flawed and that the Minister was introducing fundamental laws into this House which he would later regret. We have reached a point of regret tonight.

I will deal with an issue raised earlier in the day by the leader of the Labour Party, Deputy Rabbitte, which was addressed in the Minister's opening remarks. I listened to his detailed legal response to a very important point but I have not had time to take advices on the matter or to make sure the Minister is right. We will not have time to reflect on it during the course of the debate in the House and that is not a good way to bring certainty to such matters. The leader of the Labour Party gave an account of what happened last year, when the Supreme Court judgment struck down as unconstitutional an offence under the 1935 legislation prohibiting unlawful carnal knowledge of a child. The offence, as the House will recall, was struck down because it concerned absolute liability and did not allow a defendant the defence of honest mistake. The fact that a defendant believed a child was over age was irrelevant to that offence. The Supreme Court held that, in the context of serious offences involving moral blame, there had to be a defence for a person in that situation. I will not repeat everything the leader of the Labour Party said but it is clearly on the record.

The Minister is a learned counsel and I am not. I ask him to correct me if I misheard but he said the 1935 Act was constitutionally flawed because it predated the Constitution and enactments subsequent to the passing of our Constitution were deemed to have constitutional effect. The honest mistake provision would be applied automatically to the courts and did not need to be recited directly in the legislation. Is that correct?

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