Paschal Mooney (Fianna Fail) | Oireachtas source

I endorse all that has been said in praise of the Minister, Deputy Fitzgerald, and welcome her back to the House. Her initiative is to be applauded and there has been universal praise for the content of the amendment and for the manner in which it has been introduced. There was a certain political skill involved in this because, to a degree, it has defeated previous incumbents of the office. I note the first proposal for an amendment was in 2007. The all-party committee of which the Minister was a member, did a remarkable volume of work. Perhaps the fact that the Minister had been a member of that committee influenced and formed her views on how to proceed with this amendment. I do not wish to be churlish in any way but I had occasion to listen to the Minister?s predecessor, Barry Andrews, recently when he addressed our party?s annual think-in. It seems that wording similar to this wording was ready to go and we wondered why he did not publish it at the time. It may have been that a Government in crisis had other things on its mind but this is not to detract from the fact that the Minister has introduced this amendment of the Constitution and she is to be applauded for it.

The Constitution is a reflection of who we are as a people. It sends a very clear signal to the world at large about our values and what our society espouses and wishes to protect and encourage. I refer to the wording of the proposed amendment Article 42A.1, "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights". Any constitution that includes wording of that nature must be applauded. We now have the right to include this wording in the Constitution and we should embrace it enthusiastically because it sends a very clear message. It will also reflect the will of the people.

The Minister will be aware of the substantial body of legislation dating back to the Children Act 1990. I refer to Mrs. Justice Catherine McGuinness. It is appropriate that she should retain her title even though she is retired, as is the case in the American tradition. It provides an acknowledgement of the contribution a person will have made to public life and this should not disappear once a person leaves office. However, this is a side issue to the debate. Mrs. Justice McGuinness acknowledged that when she made the remarks that have been used as a benchmark, several elements of the Children Act 1990 had not been passed into law by 1993 although they were passed at about that time. A significant and seminal provision introduced the Ombudsman for Children. It demonstrated the desire of the people to provide some form of protection for and acknowledgement of the rights of children

Reference has been made to several court cases which have been influential. I refer in particular to the Roscommon case. I do not wish to detract from the importance of this amendment. Senator Healy Eames said that the lack of wording in the Constitution prevented the court from acting in a particular way in that case. That may be so in terms of its judicial conclusions but my understanding is that if the HSE had challenged that ruling, it would have been successful. The HSE did not challenge the ruling, meaning that the State agencies had failed. Having passed this legislation much of the emphasis on the implementation of the spirit and sentiment and legal wording of the Constitution will fall on State agencies and, therefore, there may be a need for State agencies to upskill their knowledge to ensure there are no gaps and to avoid the situation where courts can rule without the benefit of a proper and thorough evaluation of a case.

The Minister was a member of the joint committee which produced a wording which is very similar to the wording now proposed. I refer to one line in the committee?s wording which is not included, ?The State shall cherish all the children of the State equally.? Barry Andrews, the former Minister, who is a barrister, is of the view that one of the reasons this sentence was not included is because it is an abstract in legal terms and there is a question as to how it could be enforced legally. The Children?s Rights Alliance was in favour of this wording and I can understand why. I am grateful to Senator van Turnhout for providing me with this information. The Children?s Rights Alliance argues that this line should be included because it echoes the oft-recited phrase from the 1916 Proclamation. The CRA argues that this phrase is close to the hearts of the Irish people and is likely to resonate with voters. I agree that this phrase might have been useful in motivating the electorate to vote.

Reference has been made to Archbishop Martin?s endorsement of the wording. He said he was stating a personal view. I would have thought that a public pronouncement by the archbishop should be regarded as an ex cathedra statement. I would have assumed he was speaking for the body politic of the Catholic Church when he made that statement but he qualified it by saying it was his personal view. Does this signify a question about the position of the Catholic Church on this matter? I presume the church will issue a public statement as was the practice in the past with regard to previous referenda. The fact that a senior cleric of the standing of Archbishop Martin should enthusiastically endorse the wording should allay any fears that the wider Catholic Church would challenge the wording. We have come full circle.

A comparison has been made between the resignation last week of Deputy Róisín Shortall as Minister of State and the situation in which Dr. Noel Browne found himself as Minister for Health in the 1950s. I am straying into the political arena here, but the implication is that Deputy Shortall was not supported by her party leadership. Dr. Browne, in fact, lost the support of the entire Cabinet, whose members were under the spell of Archbishop McQuaid, and was left totally isolated. When one considers what his proposals amounted to, it beggars belief that they were met with such resistance. Those were, however, different times.

I do not agree with Senator Trevor Ó Clochartaigh's comments in regard to the McKenna judgment. If it is not revisited, it will cause enormous difficulties for electronic media in terms of finding commentators who will argue for the "No" side in this referendum, which they must do in order to fulfil the obligation of having equal coverage for both sides. It is important to note that while they have generally adhered to this principle of equal coverage in previous referenda, the printed media do not have the same obligation to do so under the judgment. In other words, newspapers can, in fact, take any position they wish without the restraint of the 50:50 requirement.

If the constitutional amendment is passed, legislation will be required in several areas, including that of Garda vetting. The Minister for Justice and Equality, Deputy Alan Shatter, had made good progress in reducing the waiting time for Garda clearance for child care workers to six weeks, but our experience in County Leitrim in recent months is that waiting times are climbing back up to three months. Perhaps the Minister, Deputy Fitzgerald, might look into what has caused this slippage, whether lack of oversight or something else. I wish her well in the forthcoming referendum campaign. The single greatest challenge facing all political parties will be to ensure people are sufficiently motivated to vote.