Michael McDowell (Independent) | Oireachtas source

The Minister has just said that it is best practice to amend the Act in the way she has suggested. I disagree fundamentally with that. It is not best practice to do that. It is inferior and worse practice, in my respectful view. The Minister said correctly that section 26 of the Interpretation Act would be engaged by taking the steps of accepting the amendment in our names, but it is worthwhile looking at the actual terms of section 26(1). I ask the House to bear in mind that, in the Interpretation Act of 2005, the term "enactment" also includes any provision of an enactment. The section provides as follows: "Where an enactment repeals another enactment and substitutes other provisions for the enactment so repealed, the enactment so repealed continues in force until the substituted provisions come into operation." That is not a problem. We are not actually decriminalising anything or affecting anybody's criminal liabilities at all. The second subsection (2) states:

Where an enactment ("former enactment") is repealed and re-enacted, with or without modification, by another enactment ("new enactment"), the following provisions apply: (a) a person appointed under the former enactment ... [that is not relevant];

(b) a bond, guarantee or other security ... [that is not relevant];

(c) proceedings taken under the former enactment may, subject to section 27(1), be continued under and in conformity with the new enactment in so far as that may be done consistently with the new enactment [that is fairly clear];

(d) if after the commencement of this Act-

(i) any provision of a former enactment, that provided for the making of a statutory instrument ... [that is not relevant since the Act does not deal with any statutory instrument]

[...]

(e) to the extent that the provisions of the new enactment express the same idea in a different form of words but are in substance the same as those of the former enactment, the idea in the new enactment shall not be taken to be different merely because a different form of words is used.

The crucial provision, paragraph (f), of the 2005 Act states:

(f) a reference in any other enactment to the former enactment [that means to the former provision of enactment] shall, with respect to a subsequent transaction, matter or thing, be read as a reference to the provisions of the new enactment relating to the same subject-matter as that of the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be disregarded in so far as is necessary to maintain or give effect to that other enactment.

The law is very clear and the 2005 Act, which was passed when I was in government and drafted when I was Attorney General, was precisely intended to deal with this kind of situation. If we amend an Act and substitute a new section, everything remains in existence and the two must be read, if they are trying to achieve the same purpose, as having the same meaning and that no criminal proceeding is in any way prejudiced by the substitution of one section retrospectively for another.

I make all those points for this very simple reason. The Minister said that there has not been enough time to study the application of the consequences of section 26 of the 2005 Act. There is plenty of time. We will have a Report Stage debate on this Bill also. We are not dealing with all sections today.There is plenty of time for the Department to state clearly what prejudice could possibly emerge from the acceptance of an amendment that sets out the section in an intelligible form and does not have section 1A, 2A or 1C and all of the rest of it thrown in. If the Department or the draftsman can see any possible basis on which acceptance of the amendment in our name could have some unintended consequence, let them say so. Let them say what possibility there is.

Our function is to make intelligible laws. We are trying to have a law at the end of this whereby people can look at section 252 as it will be then and say they understand the provisions of the section and they do not have to have, as Senator Seery Kearney said, three documents in front of them to try to work out what is going on. They will clearly see what the section will state. In the drafting of this amendment I was scrupulously careful to make sure every comma and every single aspect of it is as exactly as the Minister intends to bring about the law to be. There is not the tiniest deviation in implementing his proposal. We do not have to have sections 1A, 1B and 1C. We do not have section 2A. We would just have one coherent section that would fall absolutely within the ambit of section 26 of the Interpretation Act 2005. It would be readable and clear with one section having been removed and another put in. It would all fit together logically. No criminal proceeding would be affected by it. No previous prohibition would be affected by the change because the Interpretation Act so says. This is the crucial point. Either we are in the business of making intelligible laws in the House or we are not. It has been stated that the Interpretation Act has not been sufficiently studied. There is plenty of time to study it, and between now and Report Stage there will be plenty of time to come up with one possible theory as to why the law should not be in an intelligible form and not be amended in the way proposed. This is what I have to say about this.

With regard to the points made by Senator Higgins, I read section 252 as being quite narrow in its effect. It refers to a report being published or broadcast and it is in relation to any court proceeding. Some people seem to think, and I have hinted at this previously, that this means an historical fact can never be mentioned. We could say, for instance, the fact that putting in writing in any shape or form, or broadcasting in any shape or form, the fact that child A was convicted of killing child B is covered by this Act. On the other hand, supposing the mother of a child, and this is not fanciful, wants to say that a child was killed by his 17-year-old older brother. This is not a report of a proceeding. It is simply a statement of fact. The fact he was convicted or not convicted and there was some court proceeding is not the issue. I am convinced that sections 252 and 93 refer to reports of court proceedings.I am convinced that sections 252 and 93 refer to reports of court proceedings and are not crafted sufficiently widely to say that somebody cannot say that my eldest son, aged 16, killed my youngest daughter, aged 12, in any shape or form anywhere, in a book or anything like that. It is just a simple statement of fact. Whether that would be in contempt of court is a different matter. I do not read these provisions as actually saying or prohibiting a statement of fact, namely, that child A killed child B, if it has nothing to do with saying he was convicted of it by a jury or whatever, just saying he did it.

One of the problems I have about all of this, which I expressed on Second Stage, is that it would be remarkable that the mother of a child who was killed can say or write nothing and participate in no interview at all about the death of her child on the basis that somebody might recognise her, thereby recognise the dead child, and thereby draw the inference that it was another of her children who carried out the killing. That to me is not the law as we have enacted it yet. Perhaps people believe that should be the law. I am doubtful about it. I do not think that one can say to a mother that she may never ever refer to the fact that one of her children killed another of her children. The same applies, obviously, to fathers too. It seems to me an extraordinary invasion on the right to free speech to say that a person cannot describe what happened in his or her own family as a matter of historical fact, forget about any court proceedings, who gave evidence or what juries thought of the facts or not.

I make that point because Senator Higgins is correct. We may all be proceeding on a supposition of law which is not there, which is that there is an absolute ban of ever identifying any person who committed an offence as a child, even by reference to the historical fact of what they did. I know all of the arguments, by the way, and I accept the force of many of them, for the proposition that no child should have his or her criminal behaviour hung around his or her neck for the rest of his or her life. On the other hand, to say to a parent of a child victim that nobody may ever a publish any account of what happened in that parent's family, on the basis that there was a court proceeding later and a conviction, is very strange indeed.

It raises this slightly odd arrangement that if there were no court proceedings, if the DPP said that there was not enough evidence to convict, can the parent of the dead child say he or she accuses X or that child killed his or her other child? If there is no court proceeding, section 252 of the Children Act does not seem to apply, whereas it does seem to apply to a report of a court proceeding, or the outcome of one, in that it applies to the fact that somebody was convicted of an offence, but it does not seem to apply to the underlying historical fact that child A killed child B.

These are not entirely fanciful considerations. There was a former Taoiseach of this country who by accident shot and killed his brother.There was no criminal intent at all involved, and it was an accidental discharge of a firearm. I should say that person is dead, in case anyone was worried about it. That happened, and people can write about it. Is it the case that they cannot write about it because there was a subsequent conviction and a court proceeding, and that a curtain is drawn down over such an event, and it becomes unlawful to ever refer to that fact because there was a court proceeding? Or is it, as Senator Higgins is suggesting, I think, that the crucial difference is that we are dealing here simply with reports of court proceedings, and we are not dealing with a blanket ban on history?

I wanted to make those points. These were points I had in mind when we saw what was here on Second Stage but I did not want to overcomplicate the matter until I saw the Government amendments. However, I still think we should be conscious that the term “report” means something. This is a criminal statute. It is not a report of a court proceeding without any reference to the court proceeding to identify somebody one believes actually caused the death of another person, whether they were a child or an adult.