Michael McDowell (Independent) | Oireachtas source

I move amendment No. 1 to amendment No. 1:

To delete subsections (1) and (2) and substitute the following: “(1) The Children Act 2001 is amended by the substitution of the following for section 252:

“Anonymity of child in court proceedings

252.(1) Subject to this section, in relation to any proceedings for an offence against a child or where a child is a witness in any such proceedings—

(a) no report which reveals the name, address or school of the child or includes any particulars likely to lead to his or her identification, and

(b) no picture which purports to be or include a picture of the child or which is likely to lead to his or her identification,

shall be published or included in a broadcast.

(2) Subsection (1) shall not apply to the publication or inclusion in a broadcast or report of a report or picture referred to in paragraph (a) or

(b) of that subsection relating to a child where—

(a) the proceedings concerned relate to the death of the child, and

(b) such publication or inclusion would not result in a contravention of—

(i) that subsection in so far as it related to another child, or

(ii) section 93.

(3) Subsection (1) shall not apply to the publication or inclusion in a broadcast of a report or picture referred to in paragraph (a) or (b) of that subsection relating to the person against whom the offence concerned is alleged to have been committed where—

(a) the person has attained the age of 18 years on or before the date on which the proceedings commence, and

(b) such publication or inclusion in a broadcast of the report or picture would not result in a contravention of—

(i) that subsection in so far as it relates to another person, who is a child, or

(ii) section 93.

(4) Subsection (3) is without prejudice to any other enactment or rule of law applicable to proceedings referred to in subsection (1) that operates to prohibit the publication or inclusion in a broadcast of a report or picture referred to in paragraph (a) or (b) of that subsection relating to any person.

(5) Subject to subsection (6), the court may dispense to any specified extent with the requirements of subsection (1) if it is satisfied that it is appropriate to do so in the best interests of the child.

(6) The court shall not, in accordance with subsection (2), dispense with the requirements of subsection (1) in respect of a child where to do so would result in the contravention of—

(a) that subsection in so far as it relates to another child, or

(b) section 93.

(7) Where the court dispenses with the requirements of subsection (1), the court shall explain in open court why it is satisfied it should do so.

(8) Subsections (3) to (6) of section 51 shall apply, with necessary modifications, for the purposes of this section.

(9) Nothing in this section shall affect the law as to contempt of court.”.

(2) The amendment effected by subsection (1)shall, on and from the date on which this section comes into operation, apply to the publication or inclusion in a broadcast of a report or picture to which section 252(1) of the Children Act 2001 applies, irrespective of whether the proceedings referred to in that subsection were commenced before that date.”.

This amendment in effect is to put into one continuous narrative the substance of the Minister's proposed amendments to the Act.Frankly, good legislative drafting practice now requires that every Bill should be intelligible once it passes through the Houses. A person should know exactly what the law is. I have not queried the substance of the Minister's amendments but the real problem is that a member of the media would need a law degree if he or she was to work out precisely where the text, as proposed by the parliamentary draftsman, leaves him or her. Therefore, what Senator Boyhan and I have done is to set out section 252 in its entirety, as proposed to be amended by the Minister, so it is now one continuous section and is, insofar as it can be, easily read and understood.

It seems to me that the whole idea of amendment by reference is to be avoided if, in fact, one can substitute an entire section for the section one seeks to amend. In the parliamentary draftsman's proposal there is a series of separate interpolations, amendments, insertions and cross-references. Instead of having subsections (1) to (9), inclusive, for example, we now have subsections (1A), (1B) and (1C) and subsection (2A). The problem with all of that is that it is virtually unintelligible to a member of the media sitting in a newspaper office or studio somewhere trying to work out precisely what is and is not now prohibited or permitted by the law.

Although I have articulated some reservations about where we are going, I am taking at face value the Minister's amendments and the authority she got from the Cabinet to propose amendments to the Bill and simply trying to make some kind of intelligible sense of them. It is in that spirit of not trying to substitute any views of my own, but trying to give effect solely to the Minister's proposals, as approved by the Government, that we have effectively consolidated and put them in a continuous form, as set out in amendment No. 1 to the Minister's amendment.

Therefore, it makes common sense to have the law easily understood. It is a complicated enough piece of law to start with. I am not claiming any special rights on this. Since it is the Bill I proposed, however, I do not want somebody to say that he or she cannot understand a word of it and that there are subsections, new subsections and cross-references and things he or she cannot follow. A person really would have to be an accomplished law student if he or she was handed the parliamentary draftsman's text. I fully understand where it came from. The Minister got permission from the Government to propose particular amendments and adopt the Bill on the basis that particular amendments were made. However, when the Department of Justice is doing that, it should, in fact, have a continuous text embodying everything it is proposing to do so that somebody reading this Bill, if it becomes law, knows exactly what the section states without having to do two or three works and figure out on paper precisely what each subsection will mean after the passage of this Bill into law.