Barry Ward (Fine Gael) | Oireachtas source

Cuirim fáilte roimh an Aire Stáit agus roimh an mBille. Ábhar an-tábhachtach ar fad atá i gceist anseo. I welcome the Bill on behalf of the Fine Gael group. I congratulate Senator Martin and his colleagues for bringing forward this Private Members' Bill. It is an issue we have discussed in this House on a number of occasions. I need hardly go into the detail of how destructive, damaging and insidious domestic violence is, and the effect that it has not just on the direct victim, but on the family, the wider family and the household. It causes enormous damage to all of us in this country when it is allowed to occur with impunity. I was watching a debate in the plenary session of the European Parliament yesterday and my colleague the Dublin MEP, Ms Frances Fitzgerald, raised this issue and talked about the damage that gender-based violence causes. An interesting take she had on it was the effect it also has on our economy. She has identified that Europe-wide, domestic violence costs €366 billion per annum. She made the legitimate point that if this were happening in any other sphere, we would be jumping up and down about it. We have a lot of work to do. I know that at the European Parliament level there is a move to criminalise gender-based and domestic violence and I welcome that. We have made strides in these Houses. The Minister of State and his colleague, the Minister, Deputy McEntee, have been particularly forthright in bringing forward legislation that addresses gaps that people have seen in the criminal law in particular, as it applies to situations involving gender-based violence. This Bill is another step down that road, and I think it is an important step.

To be clear, one of the proposers talked about the courts system being based on the patriarchy. I do not quite understand that argument. I would say the courts system is based on a system of fundamental rights. Unfortunately, or fortunately, one of those rights is to allow people to defend themselves. Of course, they have that right and that it is as it should be. I say that as a criminal barrister with an interest in the situation. Nobody disputes the fact that individuals have the right to defend themselves. It does not mean that it is always appropriate. More often than not, I would suggest it is not the best thing for the person involved but that is a choice he or she is entitled to make. At the same time, in terms of that system of rights, there is also a hierarchy of rights, and no right is absolute. It is entirely appropriate, on occasion, to fetter one right in order to benefit the wider community or society. This Bill does that. It fetters the right to represent oneself, but it does so in the context where the balancing rights between one individual's right to represent himself - more often than not in cases like this - or herself and the right of a complainant to be able to bring a case to court, to make a complaint, to have it investigated and litigated before the courts in a criminal setting without the fear of having to face down in person the person whom - in most cases - she or he has accused of fairly heinous crimes. The coercive control offence, although relatively new to our Statute Book, has been there for an awful long time. It is only recently that we have recognised it properly in the law and recognised the damage it does. It is a particular type of offence that involves an alleged control by one person over another. The notion that in a criminal prosecution for that offence you could turn round as a complainant and have to sit there in court as the very person you have accused of trying to control you gets to hold sway in a courtroom and put difficult questions to you is anathema to the whole idea of having coercive control as an offence.

What is being done in this Bill makes perfect sense to me. I do not agree with Senator Ó Donnghaile on what he said in respect of removing that judicial discretion to decide whether it is in the interests of justice. I agree with him in that I find it difficult to envisage a situation where the court would make a decision that it must be in the interests of justice for an individual to cross-examine the person who has accused him, but I have always advocated for judicial discretion in this House. We must trust our judges, who are highly-qualified, competent and empathetic people. We must trust them to make the decision. I think one of the reasons that the proposers have left this in the Bill is to allow the least infraction on the constitutional rights on individuals and therefore the greatest possibility of the Bill passing. In section 1 of the proposed inserted section 39A, subsections (1) and (2) provide for the different scenarios where the person is under 18 or over 18. I say this again as somebody who is a member of the Bar, but it is important to recognise that we have, in this country, a group of highly-qualified advocates whose job it is to go into court and advocate for a particular side in a case. One of the advantages of having such a coterie of people is that in exactly this situation, they understand where the line is. They have an obligation, under the Bar Council code of conduct, to ensure they do not do things that cross that line and that they do not put things to witnesses to cause offence or hurt, which is not to say that that will never happen. There are times when it is appropriate and in order for that to be done, and sometimes it has to be done. There is a wild difference between an accused person getting up and, let us be honest, sometimes settling a score, and a professional barrister or advocate standing in to make that point in a professional controlled way.

If I may make some drafting points in the few seconds that I have left, in relation to subsection (3) of the inserted section 39A, guidance on what the time period should be would be helpful. I wonder about subsection (7) and the reference to civil legal aid as opposed to criminal legal aid, but I do support the elements of the Bill. I think it is a positive proposal that will put in place important protection for persons who come before the court complaining of coercive control or witnesses in that case, it makes sense for this buffer to be placed between them and the person against whom they have made that complaint.