Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Child Trafficking and Pornography Act 1998 has proved to be one of the most effective measures against the sexual exploitation of children in Europe in recent years. It has been widely studied by members of parliaments in other countries as a model law in child protection.

In the current climate we have a particular sensitivity to issues surrounding child pornography. For that reason, the intricacies of the Child Trafficking and Pornography Act have come under closer scrutiny than ever before. One of the concerns that exists about the Act is that it might have the effect of constraining, or even rendering criminal, legitimate investigations by committees of the Oireachtas into matters relating to child pornography. It might also have the effect of restricting the level of co-operation between the Houses of the Oireachtas, or committees thereof, and persons from whom co-operation is desired.

In this regard, concern arises in the first instance because possession of child pornography is one of the criminal offences established by the Act. This would mean that, on the face of it, anyone who comes into possession of child pornography for the purposes of legitimate inquiry or investigation would themselves be guilty of that same offence. The Oireachtas, in its wisdom, anticipated this problem and avoided it in most circumstances by providing, in section 6(2) of the 1998 Act, that the Act does not apply to persons who possess child pornography in the exercise of functions under the Censorship of Films Acts, the Censorship of Publications Acts and the Video Recordings Acts or for the purpose of the prevention, investigation or prosecution of offences under the Act. This means, for example, that the Garda Síochána, in the course of an investigation of child pornography offences, can take possession of child pornography without fear of themselves being guilty of an offence.

As the law now stands, no exemption of this nature extends to Members of the Oireachtas who may come into possession of child pornography as a consequence of carrying out their proper functions. This creates the anomalous position that, should a House of the Oireachtas, or any committee of a House, desire to gather evidence in regard to any matter relating to child pornography, any Member who came into possession of such pornography might technically be committing a criminal offence. Any civil servant or legal adviser assisting in such an investigation would be under a similar constraint if he or she came into possession of the child pornography in the course of their legitimate functions.

Similar concerns would arise regarding the offences of publication or printing of child pornography, which might theoretically expose to prosecution a person who only published or printed the material in question in the course of legitimately carrying out a function of the Oireachtas. There is a concern that there would be an interaction with parliamentary privilege. Clearly, these would not be tolerable positions in which to put any Deputy, Senator or official.

A further difficulty arises from section 5 of the 1998 Act in that the Act makes it an offence to distribute child pornography. In section 5(2), "distribution" is defined as including the parting of possession with child pornography. This would lead to a position where a person who is or might be in possession of child pornography might refuse to hand over to the Oireachtas either the child pornography itself or computers on which the child pornography is or may be stored.

Such a person might possess the material innocently — if, for example, he or she owned a computer onto which some third party had downloaded child pornography. Such a person might not even be certain that the material in question is child pornography within the legal meaning of that expression but no matter whether a person possessed the pornography innocently or otherwise, that person might well refuse to co-operate with an investigation or inquiry by the Oireachtas because in doing so he or she might run the risk of committing a criminal offence.

The solution proposed by the Government for this particular problem is to insert a new section 13 into the Child Trafficking and Pornography Act 1998. This new section 13 will ensure that nothing in the Act shall prevent either the making or compliance with a direction under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 or the possession, distribution, printing or publication by either House of the Oireachtas, a committee within the meaning of that Act or any person, of child pornography for the purposes of, or in connection with, the performance of any function conferred by the Constitution or by law on those Houses or conferred by a resolution of either of those Houses or resolutions of both of them on such a committee.

This Act will permit the Members of the Houses of the Oireachtas, together with any appropriate officials and advisers, to carry out their appropriate functions in circumstances where issues relating to child pornography might be involved. It will clear the way for third parties to hand over relevant evidence without fear of prosecution merely for giving the material over and it will prevent such third parties from relying on the provisions of the 1998 Act in order to refuse to co-operate with the Houses of the Oireachtas or any committee thereof.

The Bill has been initiated in Seanad Éireann and I understand, as announced on the Order of Business this morning, that another measure in connection with the compellability of witnesses legislation is now before Dáil Éireann and will be before Seanad Éireann this afternoon. The measure is a straightforward one and I have nothing to add.