Brian Lenihan Jnr (Dublin West, Fianna Fail)

I agree with Senator Maurice Hayes. An interesting question was raised by Senators Cox and Norris but it is one that must be raised in the context of the all-party discussions. It is clear from the debate in both Houses that there is no consensus on what should be the age of responsibility. Fine Gael has tabled an amendment suggesting there should be a lesser penalty, but its leader made an eloquent address in Dáil Éireann this morning urging us all to leave the clear signal there about the age of 17. That was the case he made in the House today.

We consulted with all the parties and we could not establish a consensus on what the appropriate age of responsibility should be. There is an option for the summary disposal of minor offences in this legislation. Although I accept that option is restricted to attempts under the different sections, the Director of Public Prosecutions asked us to specifically provide for that and we did so. The Government's decision, which is our recommendation to the Oireachtas, is that we should restate the basic prohibitions in the 1935 legislation and postpone the issue of the age of responsibility to a wider debate. I accept there is a wider debate, but we have inserted the safeguard, to which Senator Maurice Hayes referred, of the sanction of the DPP in any prosecution.

I want to address specifically an issue Senator Cox raised in that context. Senator Cox seemed to be under the misapprehension that the DPP's hands were tied in consideration of any prosecution. It is well established at common law that the DPP has a discretion as to whether or not to prosecute, and nothing in this legislation affects that. The DPP has a free hand in that matter. That is an important consideration. Certainly, the Government would not have been content bringing these proposals before the House if the DPP did not have that element of discretion in any prosecution.

Senator Cox was also concerned that we would be prosecuting young boys. Of course that is the position under the existing 1935 Act, which was considered by the Supreme Court. The Supreme Court did not condemn that element of the legislation. That is the existing law in practice. The Government, in arriving at a conclusion about what is appropriate today, had to consider the existing law. Certainly the Government is willing to have a debate on the existing law but it does not accept that such a debate can be concluded in a period of ten days.