Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I also want to refer to the submissions made by Dr. Geoffrey Shannon, the special rapporteur on children's issues. Dr. Shannon has done a particularly good job on children's issues over the years. He also recommended the setting of the age of consent at 13 and so did the committee in its report.

I strongly agree with what Senator Clifford-Lee said when referring to knowledge, information and education and training and to assisting people in dealing with this issue. That should be the background to our debate rather than arbitrarily lowering the age and hoping for the best by way of some form of prohibition. Considering the issue in light of information, knowledge, advice and guidance is important. Setting the age at 13 was seen - and still is seen - as representing something of an appropriate balancing of a child's right to participate in an online environment and, of course, the right to safety and protection. I speak as a former Minister for Children and Youth Affairs, albeit for a reasonably short period.

I listened to Senator McDowell speak about the UN Convention on the Rights of the Child. He has formed the view that it really does not matter all that much because the declaration is somewhat outdated and outmoded. I am not really sure if I accept his view. I think the convention plays a very important role in terms of the overarching principles on the rights of the child. I remember vividly its 40th anniversary. In fact, it was the first time that I had an opportunity to meet the then Senator Michael D. Higgins in Galway when he presided over a special event. I was not too long in politics at the time and I fondly recall some advice that the now Uachtarán na hÉireann gave me on that occasion. I think that was in November 1989.

The age of 13 was chosen after considerable and careful consideration. It was mentioned that other countries have set a different age from the one that we propose, which is true. It is also true to say that Ireland is very much in line with many other EU states. The age of 13 has been adopted by the Czech Republic, Denmark, Latvia, Poland, Spain, Sweden and the UK. In the past couple of weeks, the Finnish Government has also decided to adopt the age of 13 years. It is important that we note the position of Sweden, Denmark and Finland because these are countries to which we often look as models in the context of child support, child welfare and child protection. They have all adopted the age of 13.

During the course of the debate, I remarked upon the fact that while there was reference to many submissions, there was particular reference to that of the Children's Rights Alliance. I have its submission with me and a letter I recently received. I had the opportunity last week to hold a very constructive meeting with the chief executive of the Children's Rights Alliance. The body has a considerable contribution to make to this debate but it recommended that the age be set at 13, contrary to what may have been implied here earlier.

Among the many submissions to which I wish to point are those made by the ISPCC and the Ombudsman for Children. I also want to point to the submissions made by some of the lesser known bodies and organisations such as SpunOut.ie. I further wish to refer to the very important contributions made by Digital Youth Council, CyberSafeIreland and Dr. Shannon, to whom I have already referred.

I acknowledge that there is another view. I am not saying that the people who proffered or proposed the other view are in any way wrong or misguided.I listened carefully to their views and I listened very carefully to Senator McDowell's opening contribution. He advocated on behalf of a group who recently visited the Houses of the Oireachtas and made a very worthwhile and constructive contribution. I am sure we will hear a great deal more from those individuals, which I welcome as part of the debate.

I note in response to Senator Noone that it is important to reflect on the basis of the support of many groups for the age of 13. Briefly, I cite matters like the potential impact a higher age threshold could have on the educational and social development of children in Ireland. Restricting the access of 13, 14 and 15 year olds to online services and social networking sites could very well place those children at a disadvantage compared to their peers in other jurisdictions. I note that in the context of increased mobility across the world, the ease with which people travel, student exchanges and the ease with which many of our teenagers travel across the Union and beyond.

Reference was made to the negative impact a higher threshold could have on the right to freedom of expression of children and the right of participation of children as enshrined in international treaties. Senators Higgins and Ruane both raised the matter of the unenforceability of a higher age threshold in the absence of robust, effective age verification mechanisms. That is important in the context of the ease with which children even younger than 13 years are using the Internet. The point was stressed by Senator Ó Donnghaile and others.

It is also reasonable to make the point that adopting a higher age threshold could well encourage technology savvy children to be misleading about their age, which would make it difficult for online service providers to offer age appropriate guidance and tools to ensure a safe online experience. I agree with Senators Noone, Coffey and others about the need to have a safe online experience which is different to a prohibited or illegal one. That is why this should be seen in the context of what we are proposing across Departments, with particular reference to the Department of Children and Youth Affairs, the Department of Communications, Climate Action and Environment and my own Department of Justice and Equality.

A consultative process is ongoing in the context of two Bills before the Dáil and a forum will be held in March at which I hope Senators will have the opportunity to make contributions. I assure Senators that the Minister for Children and Youth Affairs, Deputy Zappone, and the Minister for Communications, Climate Action and Environment, Deputy Naughten, the Minister for Education and Skills, Deputy Bruton, of course, and I are collaborating on this issue to ensure we have something of a cross-Government or even whole-of-Government approach. This is a question of striking a balance in the context of what is happening in any event and also ensuring that our laws are not unduly restrictive or prohibitive. It is an issue we can revert to at a future date. I agree with Senators Noone and Higgins that this may be an issue which might be looked at by a future digital safety commissioner, however, I am not minded now to accept amendment No. 7 which seeks to replace the age of 13 with the age of 16.

Amendment No. 8 is simply a drafting amendment which does not alter the substance of section 29. I certainly understand the motivation of Senator Clifford-Lee in tabling amendment No. 9 but a reading of her proposal suggests that it cuts across the text of Article 8 of the GDPR which is a difficulty I have in terms of accepting it. Article 8(3) already provides that the controller, being the provider of the information society service concerned, must make reasonable efforts to verify that consent is given or authorised by the holder of parental authority. It specifies that the available technology must be taken into consideration by the controller. That provision is directly applicable in law arising from the text of Article 8, which takes precedence in the circumstances over the proposed amendment. For that reason, I am not in a position to accept it.

It is highly likely, however, that the European Data Protection Board will, in any event, issue further guidelines on the matter with a view to being in a position to identify best practice. It will be able to do that under Article 70 of the GDPR. I am unable to accept the amendment, but it is an issue we can discuss in the context of further engagement. I said at the outset that the whole basis of the law was opportunity and protection for citizens. I refer Seanadoirí to Article 40 which makes provision for codes of conduct. Specific mention is made there to a possible code of conduct on the provision of information to and the protection of children and the manner in which the consent of holders of parental responsibility over children is to be obtained for the purposes of Article 8. That is a matter we can look at in the context of further engagement also.

I am sorry if Senators feel the legislation is being rushed. I have been attending EU Justice and Home Affairs meetings for the past few months where this issue is very high on the agenda. There is a clear intention on the part of all member states to enact the legislation in its entirety by the date in May. That target date is pretty rigid and it is one we have agreed. It is vital to achieve compliance with that and enact the legislation. We have some time in that regard. I hope that, as with this evening, we will have ample opportunity on this and I regret genuinely any feeling people have that it is being rushed. We had a process going right back to pre-legislative scrutiny and, indeed, the public consultation, all of which has informed us as to the approach we are now taking.