Seanad debates

Wednesday, 7 March 2007

Criminal Law (Sexual Offences) (Amendment) Bill 2007: Second Stage

 

Question proposed: "That the Bill be now read a Second Time."

11:00 am

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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The purpose of this short Bill is to remedy an error in the Criminal Law (Sexual Offences) Act 2006. The point we were dealing with last week in the Dáil was brought to my attention by Deputy Rabbitte, for which I thank him. While the error he pointed out is not as significant as has been claimed in many quarters, I have decided to act quickly and decisively to ensure the legislation on the Statute Book is as the Oireachtas intended it to be.

The error in question, which made section 6 of the 1993 Act inapplicable to offences under the 2006 Act, arose due to a drafting error for which I am politically accountable. It was a summary, not an indictable, offence. Whereas the Constitution categorises all summary offences as minor offences, it worried me that the statutory offence of asking a child to engage in a criminal activity of a sexual nature had inadvertently been deactivated as a consequence of that error last year. To understand the reason for the offence at section 6 in the 1993 Act one must look at section 7, which deals with soliciting or importuning for the purpose of prostitution. Before the 1993 Act there had been no provision similar to section 6.

When the 1993 Act was being drafted it was thought that some type of soliciting might not be caught by section 7 and that it was advisable to bridge a potential gap by protecting children and mentally impaired persons from being solicited in circumstances which would not amount to prostitution. While the fact that section 6 was enacted is evidence of changing times and of greater awareness of the dangers of child sexual abuse, it still is the case, somewhat mysteriously, that it was enacted as a summary offence only, whereas many people would consider it a serious offence to ask a child to engage in an act which would amount to a criminal offence. The reason it was made a summary offence was that it was considered just a different species of the statutory prohibition against what is loosely referred to as "kerb crawling". It was not intended to be a major bulwark of the law protecting children at the time. It was a summary offence prosecuted in the District Court.

The significance of it being a District Court offence is that no jury trial would be available to somebody prosecuted for it. There are strict time limits in the District Court whereby offences must be prosecuted within six months of their occurrence. In addition, there are limits on the types of penalties that can be imposed. It was not, as has been contended, one of the chief defences for children against child sexual abuse. Nonetheless, it is an important offence and that is why we decided to upgrade it to an indictable offence so certain consequences would follow.

The offence will be capable of being prosecuted at any time. There will not be a time limit, subject to natural and constitutional justice, in respect of the period after which a prosecution can ensue. Second, because it carries a penalty of a five year term of imprisonment, it will be an offence which will be capable of being the subject of detention for questioning, which was not the case with the offence in its original form. Third, the penalties will be far bigger. There is a five year term of imprisonment as opposed to 12 months. In serious cases, a jury trial will be available as it will be an indictable offence.

When this was a summary offence we did not provide for anonymity of complainants, clearing the court and a series of actions one would expect to follow in cases of this nature. We are taking the opportunity in this legislation, given that we are upgrading it to an indictable offence, to provide the ancillary protections and procedures, such as children giving evidence by video link and so forth, which was never the case when it was a District Court offence. The House should bear that in mind.

The offence in section 6 was created in 1993 as a sub-species of soliciting which was a prostitution offence at that time. It was made a summary offence and was not intended to be one which would ever be tried before a judge and jury. It was not intended to attract serious penalties and it did not carry with it a series of protections, such as the right of a child victim to independent legal advice or to give evidence over a video link. It did not provide for a right to anonymity for the child or the accused. None of these existed with regard to this offence. Furthermore, it is significant, bearing in mind some of the amendments that were made in this House, there has never been in respect of this offence any statement as to whether a defence based on the absence of honest belief was or was not material. That has never been part of the law with regard to this issue. I will return to that later.

Section 2 of this Bill effectively re-enacts the original offence but makes it an indictable offence. Section 3 adapts a number of provisions in a number of statutes to provide that the rules of excluding the public from the court, preliminary examination, restriction of evidence and anonymity will apply in these cases. It also allows for separate legal representation and legal advice in the circumstances envisaged by the Act of 2001. Section 4 provides for the child being able to give evidence through a television link or through an intermediary. These provisions are required if we are to deal with this as a serious, indictable criminal offence.

The second Act being amended is the Sexual Offences (Jurisdiction) Act 1996, which made it possible to charge in the State persons who are Irish citizens who are ordinarily resident here who are alleged to have committed sexual offences against a child in another country. The offence of solicitation will now be both a territorial domestic offence and an extra-territorial offence, where somebody goes on holiday as a sex tourist, to use that horrible phrase, to a place outside the jurisdiction and solicits a child for sex. It will be an extra-territorial offence. The Bail Act will also be amended to make this one of the serious offences in respect of which bail can be opposed in the case of somebody likely to re-offend.

The fourth Act being amended is the Sex Offenders Act 2001, which contains a long list of offences. This offence will be subject to the sex offenders register for the first time. Some people appear to think that this was always the law but it was not. I hope the House will appreciate that we are not simply reinstating this offence. We are upgrading it to an indictable offence and we are providing the full panoply of legal provisions in terms of ancillary protections and procedural matters, as well as extra-territorial application. We are including it with other serious offences against children for the first time.

Section 5 amends the penalties for attempting to have sex unlawfully with a person under 17 years of age. Last year when we legislated on this matter we provided low penalties for attempt, based on the 1935 Act. However, it would be remarkable if the penalty for soliciting a child attracted a more severe penalty than attempting to do the act upon the child. It was felt that if this was to be made a serious offence of soliciting, making it indictable with a five-year penalty, it would be absurd to have a four-year penalty for somebody who attempted the act.

A controversy cropped up about this which should never have. It has been suggested this legislation is infirm because it does not deal with the question of honest belief as a defence. It has been suggested that it is a mistake not to include this in the Bill. Nothing could be further from the truth. The Attorney General considered this at length and came to the view that it would be wrong to insert in this, as with other offences, a particular formula based on a defence of honest belief. Why is that the case?

The CC case, with which we had to deal last year, was based entirely on the particular legislative history of defilement of females. The Supreme Court held in the CC case that it was the clear intention of the Oireachtas to abolish the defence of honest mistake. It was not capable of being interpreted otherwise, having regard to its legislative history. In the same Act, the offence of indecent assault on a young person was entirely silent as to honest belief. The Supreme Court said that in that case there was no problem since it was capable of a constitutional construction and it would imply the ordinary rules of mens rea to it. Mens rea, the guilty mind doctrine, applies to all serious offences in our law, with very few exceptions.

If it is made a criminal offence to have sex with a person of a particular age, then no one should be in prison as the law and the Constitution now stand if there is a reasonable doubt as to whether that person actually knew the age of the person with whom he or she was dealing. If there is a reasonable doubt as to a person's guilt, the Supreme Court has said in the CC case, that a system must be in place in which he or she cannot be convicted. That is proof beyond reasonable doubt. There cannot be a proof on the balance of probabilities. It must be proof beyond reasonable doubt.

If the Houses agree to put a referendum to provide for cases of absolute or strict liability concerning sexual offences against young persons and it is adopted, and if we introduce a category of offences — a zone of absolute protection — under the Constitution, reversing the decision in the CC case, it will be possible for the Houses to enact laws which cast on the accused all the risk of engaging in any sexual behaviour with a young person. It will cast guilt on the accused person if he or she gets the age of the young person wrong.

The Attorney General considered it before the Bill was presented and has provided me with judicial dicta on the subject. The situation that now obtains is that the offence, like the offence of sexual assault which is a major plank of our law in the defence of children and where there is no mention of honest belief, will be construed by the courts as requiring a guilty mind to be shown by the prosecution as is normal in all of these offences.

The case has been made that we must now include the defence of honest belief in all offences of sexual crimes against children in order to proof them against constitutional challenge. That is not the case. No serious lawyer believes that should be done. Every Act is construed constitutionally. If it is a necessary constitutional ingredient of criminalising any serious offence that it should be proven the accused had a guilty mind — in this case the accused did know the person was under age — every Act of the Oireachtas will be so construed by the courts. It is not necessary to put a defence of honest belief into every offence.

The proof of the pudding is that section 6, inadvertently deactivated in respect of certain sexual offences, did not mentioned honest belief. The offence of sexual assault — indecent assault as it used to be called — does not mention honest belief as a defence. The courts impute that to the offence and the Supreme Court has said this is part of our fundamental constitutional jurisprudence in offences of this kind. It is not necessary for the Oireachtas to stamp all offences which relate to age differentiated cases with a particular defence set out in statute form to proof them against constitutional challenge. Every Act of the Houses is presumed to be and construed in a manner consistent with constitutional requirements.

The points raised by Deputy Rabbitte in the Dáil were examined in advance by the Attorney General. The Attorney General came to the conclusion it would be an error to insert these offences on a comprehensive basis right across the law on sexual offences against minors. He drafted the legislation on this basis. He has examined the matter since Deputy Rabbitte made the point and he is stronger in his view that it would be a fundamental error to claim all our laws are open to challenge because they do not mention the honest belief defence. That is not the law and it would not be a proper way to go about our business.

I presume bright, intelligent and industrious people in the Labour Party's backrooms were going through——

Photo of Brendan RyanBrendan Ryan (Labour)
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We have loads of them. We even have a few in the Oireachtas.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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Some of them I know myself and am very fond of them. I presume they were going through the legislation——

Photo of David NorrisDavid Norris (Independent)
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It would be a great help if we had less repetition because this Bill will be guillotined. If this goes on much longer there will be no opportunity for any Member to participate.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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The Minister without interruption.

Photo of David NorrisDavid Norris (Independent)
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There will be practically no time for amendments.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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This error was picked up when they were preparing anti-grooming legislation. The Labour Party leader responsibly alerted me to this in the Dáil last Thursday. I said I would deal with it as soon as I possibly could. On Friday, he published a Bill and informed me he was glad I was making time available to deal with the matter as one of urgency in the Dáil. At that stage, I took it as the green light to get on with it. Last Friday, the Fine Gael Party published a Bill aimed at preventing grooming. It was a modest Bill with which I did not disagree. I did not want parallel debates in the Dáil and I put legislation before the Dáil which took the spirit of the Labour Party amendment, which required urgent action to change the particular offence, and the substance of the Fine Gael Party's legislation. The guillotine was not necessary in the Dáil last night because the debate concluded within the time allotted to it. I hope the same will happen in the Seanad. There was all-party agreement that this was a good and requisite measure. The amendments tabled on it were carefully considered. I look forward to the debate in this House and dealing with the amendments.

Sheila Terry (Fine Gael)
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I welcome the Minister and his officials to the House. I welcome this Bill, just as my party did in the other House last night. Fine Gael has been very strong in its support for measures relating to child protection. It supports the zone of absolute protection and retaining the current age of consent. We have called for a referendum on the important issues regarding child protection. The Minister will agree that we do not want that legislation to be rushed because we have found to our cost what happens when that is the case. With the best will in the world, human error can occur when something is rushed. When anomalies or loopholes are identified, we will all call for urgent legislation, but we must always be careful that, in expediting its passage, we do not make errors, afterwards reaching a position such as today's.

While I welcome that this is being dealt with swiftly, we must ensure when we make such important changes, especially regarding child protection, we examine it thoroughly. We should not cause further problems inadvertently, as happened in this case. I certainly welcome the Bill before us and feel that the additional measures the Minister is taking on board will provide us with legislation affording protection to children and providing a deterrent to those predatory adults, unfortunately at large in society, who prey on young children.

Unfortunately, this country has a very poor history in child protection. Many cases in which children were abused came to light only recently, having gone undetected for years. I am glad we now live in a more open society in which we are more aware of the situations in which children can find themselves and that we are able to bring them to light. Last week, we saw that success sometimes depends on the vigilance of parents, ensuring that they know what their children are doing and any danger in which they might be.

We legislators must ensure that laws are in place to protect children and that we can act speedily to deal with perpetrators. I will not be too critical regarding last year's events when the emergency legislation came to the House. I know that many criticisms were levelled at the Tánaiste last night owing to the delay during a week in which we threw abuse at one another across the Houses. That time might have been better spent in a serious examination of the legislation.

Photo of David NorrisDavid Norris (Independent)
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Hear, hear.

Sheila Terry (Fine Gael)
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The alternative is our having to introduce emergency legislation overnight. I will not go back over all that, since what is done is done. I appreciate what we now have. We are all human, and I hope that the legislation is watertight. I also welcome the provision regarding Internet grooming and appreciate the fact that the Government has taken on board Fine Gael proposals. My only question is, if this was published three years ago, why was it not dealt with sooner? However, we have it now, and I welcome that.

We live in changed times, and our children are now reared with more numerous and varied problems than we had when we were growing up. With the Internet, a whole new world is opened up to them and they can be at risk. It is up to us to ensure we protect them in every possible way. I will delay no longer the passage of this welcome Bill.

12:00 pm

Photo of Jim WalshJim Walsh (Fianna Fail)
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I too welcome the Minister and the Bill itself, which is an example of political parties co-operating on questions of importance and real concern to people rather than turning them into partisan issues. That is to the benefit of the Houses and society as a whole. This Bill arises from the emergency legislation passed last year, but everyone in the House welcomed it at the time because there was a need to fill the lacuna that existed as a result of the Supreme Court's ruling in the CC case, in which the defence of honest mistake was upheld, thus affecting the Statute Book. If the emergency legislation had not been passed, we would have created a much more serious situation in which serious offences would not have been prosecuted.

It is inevitable that where legislation is passed in an emergency, not everything may be picked up, leading to the scenario that has arisen in this case. That is why in the Houses we have a general tradition of not taking all sections of Bills together and allowing time for them to be digested and considered after Second Stage and for amendments to be tabled in a sensible manner. That is good practice, but there are times, such as arose last year, where that is not practical.

I also welcome the Minister's outline of the change in the offence of soliciting or importuning. Hitherto it has been a summary offence, but it is now to be indictable. Neither have there been powers of detention, and the case would be heard in the district court, but now it is rightly to be treated as a much more serious offence. In that regard, the Joint Committee on Child Protection, of which the Minister was a prominent member, recommended the enactment, as a legislative priority, of an offence of child sex abuse, following proposals from the Law Reform Commission. Such an offence would include other forms of sexual contact or behaviour falling short of full sex. It very much falls into that category, and the Minister has followed part of that report by introducing this legislation and treating the crime as the serious offence it is.

Child protection is a major issue, but I have also seen instances where people who were somewhat mentally impaired were taken advantage of. It is very much appropriate that there be protection for them in this legislation too. I note the Minister's comments on the defence of honest mistake and his belief that it is unnecessary to include it in the legislation. It struck me that if one introduced one of the recommendations in the report of the Joint Committee on Child Protection into all legislation, namely, if we created a zone of absolute protection through a constitutional amendment, one would have legislation on the Statute Book at absolute variance therewith. That situation might ultimately prove even more serious, so there is a strong element of logic in what is being said and in the line being taken.

I very much welcome section 4, which deals with what the Minister referred to as sex tourism. It is abhorrent that people who are upstanding citizens at home should deviate from those standards when they go abroad. That many western tourists have gone to Asia and elsewhere to exploit children involved in the sex trade is unacceptable. I welcome the fact that that offence, if committed abroad, will incur the same judicial process and penalty as if it were committed in this country. That is a good measure. One section provides that this offence can now lead to bail being refused on certain grounds, which is also a good proposal. These are serious offences and should be considered as such. We regard the downloading of child pornography from the Internet as a serious offence, so surely somebody soliciting or grooming a child for sexual activity is committing an even more serious offence. I am glad that provision is in the Bill and that the offence will be added to the list of offences which can require a person to be placed on the sex offenders' register.

Section 3(2A)(a) as inserted by section 6 of the Bill refers to: "Any person who . . . intentionally meets, or travels with the intention of meeting, a child, having met or communicated with that child on 2 or more previous occasions." Why is the number 2 cited rather than it being on any occasion. Is there a significance with regard to the number 2 being included in the paragraph?

Would that section cover grooming or preparing a child for any sort of immoral activity short of full penetrative sex? All speakers would agree that when it comes to children, we cannot be too protective. During recent decades, various crimes have come to light, not just in Ireland but also across the western world and, I am sure, further afield, which have clearly illustrated the need for absolute diligence and care in this respect. The Bill represents a positive step in that direction. I commend the Minister on introducing it and look forward to it being passed by the House, as it has been by the Dáil.

Mary Henry (Independent)
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I wish to share my time with Senators Quinn and Norris.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is that agreed? Agreed.

Mary Henry (Independent)
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I welcome the Tánaiste to the House and I also welcome the Bill. I am glad the Tánaiste has upgraded the offence of asking a child to engage in sex, which is a quite serious one. The same applies to a mentally impaired person.

As Senator Terry said, we have always had to tell children of the risks involved in meeting strangers. We now have the additional risk of cyberspace, which none of us had to deal with before. Section 6 inserts section 3(2A)(a) which addresses this matter firmly in the wording "having met or communicated with that child on 2 or more previous occasions".

It is important to try to address the situation regarding the Internet and other forms of technology. Unfortunately, technology is racing ahead of us and it is very difficult to be sure that we have every corner covered. I hope the word "communicated" will cover any further developments there may be. For example, who would have thought one could do so much with a mobile phone as one can nowadays? A few years ago, it was just for making or receiving calls, whereas now it can be used for so much more, although not to good effect sometimes. We have seen cases of children being bullied by text messages, not to mention being beaten up in so-called happy slapping incidents. It is extraordinarily difficult to try to keep up with such things. Difficult as it is, however, and the Government can run numerous campaigns, parents must be alert to what is going on in this area. One would not send a child out on a bicycle without giving him or her some idea of the rules of the road. In fact, one would try to ensure a child was proficient in those rules.

We must ensure that we know what is happening on the Internet concerning our children. I commend the lady in north Dublin who managed to find out quickly that her child was being contacted by people who were soliciting him for sex. He became involved with people via the Internet. There are people who do not feel it is wrong to become engaged in such activities.

I am glad the Minister has decided to keep the term "child" as meaning a person under the age of 17 years. One difficulty facing all of us in dealing with various legislation covering the sexual abuse of children is that there are so many different statutes. The Minister has had to modify many of them in this Bill. Is there any way in which we could have a consolidated statute in the not too distant future? Sometimes it is difficult to know whether 15, 16 or whatever is the age at which it is illegal to contact children.

It is also important to address children on this issue because there have been cases where children have lied about their ages. Some time ago, there was a serious case in England concerning a child of 13 who had said she was 19 on the Internet. An American soldier came to the UK and became involved with her. It was a notorious case involving a police chase around Europe. It is, therefore, no harm to inform children that lying on the Internet is not something to be advocated.

Unfortunately, the Stay Safe programme is only implemented in 75% of primary schools. I have raised this matter with the Department of Education and Science and in this House, as have others, but the programme's application still seems to stick at 75%. Therefore, one quarter of primary schools are not bringing these issues to the attention of small children. The Minister should ask his Cabinet colleague, the Minister for Education and Science, to address this point. If the Stay Safe programme were fully implemented, such information could be reinforced by schools. One may find that some parents will not get around to addressing these issues with their children.

I am glad the Minister has placed such crimes on an international footing. Years ago, I proposed a Private Members' Bill on child trafficking which was eventually incorporated into legislation brought forward by the then Government. One can be sure that if somebody is doing something abroad, there is a strong possibility they will also be doing it in this country. In addition, why should children abroad be less protected than children in this country? That is an important issue to bring forward in the legislation.

While I commend the Bill, it will be hard to police. It is a difficult area to deal with because it is very private. The Government can only do so much but there is also an onus on parents to be like that woman in north Dublin by trying to watch the activities of their children. It seems awful to be spying on what children are doing. People talk about allowing children to be creative and to fantasise on the Internet, but some types of fantasy are dangerous. One must put this issue under that heading.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I welcome the Tánaiste to the House and welcome the Bill. I congratulate him on accepting Deputy Rabbitte's suggestion last week and for moving as quickly as he did. We are not used to speedy legislation like this. I note that the Tánaiste also praised Deputy Rabbitte, for which I congratulate him.

I abhor so-called quickie legislation, as I think we all do. We never want it and, therefore, in passing this Bill today, we do so with reluctance while recognising the need for it. We should be ashamed of ourselves, however, because we accepted so-called quickie legislation last year, in both Houses, and missed this particular point. We are not lawyers and cannot be expected to identify such points, but it concerns me when, on occasion, I see insufficiently serious attention being paid to some Bills.

I felt a great deal of pride when I was elected to this House, as all of us did. We accepted a great deal of responsibility on our shoulders to examine every Bill in detail. We clearly did not do that effectively last year. There are 166 Members of the Lower House and 60 Senators, but I am not sure how many spoke on the matter or investigated it. We should be ashamed of ourselves for not seeing it. Is it possible that the omission in last year's legislation was not a mistake but was done deliberately by a person in the Office of the Parliamentary Counsel? It did not enter our heads until recently that such a scenario could arise.

I accept everything that has been said and share Senator Henry's sentiments, but let me take the case of the Control of Exports Bill that came through this House the week before last. That Bill enabled us to prosecute a citizen who acts as broker for the sale of armaments abroad. I asked the Minister if this was a sensible arrangement that could be enforced if that citizen left the country 20 or 30 years ago but still held an Irish passport. I suggested it would be better if the Bill referred to residents of Ireland. The Minister accepted my point and sought to find the correct word, be it resident, domicile or something else.

I mention this because, in section 6, this Bill refers to any citizen of the State who intentionally meets a child having met or communicated with that child on two or more occasions. Is it possible to enforce this legislation on a person who happens to be a citizen of Ireland but left ten or 20 years ago with no intention of returning? Can we bring this person back to Ireland or can we prosecute him or her in another country? The Minister has covered the other point I made last week relating to a resident of Ireland who travels to another region.

I congratulate the Tánaiste and Minister for Justice, Equality and Law Reform, Deputy McDowell, on the Bill and on moving as quickly as he did on the issue. I am ashamed that the Bill we passed last year created this problem without us noticing. This is why we must be very careful to avoid so-called quickie legislation that passes through without us paying the necessary attention.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I welcome the Minister and his generous response to the Labour Party leader, Deputy Rabbitte, and am glad the Bill is before us today for our perusal. I am sure there are other Bills and Acts where a clause addressing the worrying aspect of this could have been fitted. There are other Bills that would have been passed that could have encompassed the gap that has been found but the Minister is right to remove any doubts that could have existed by copperfastening the issue with the introduction of this legislation. It is better to be safe than sorry and the speedy manner in which this matter has been addressed has removed concern in the community so that there will be no repeat of the demonstrations outside Leinster House last May. I said last year that the Bill would need to be rectified but panic set in and they insisted that it be passed immediately. When panic sets in, common sense goes out the window.

I echo Senator Henry's sentiments on putting the legislation together. The body of legislation dealing with children is huge and goes into many areas of life. As the Internet has grown, we have seen the effect it can have on children. Curiosity is a fine feature of children and a natural inclination. They are curious to learn, to know and to go down paths others do not know. However, another natural characteristic of a child is vulnerability. Curiosity and vulnerability are potent characteristics when combined and leave a child open to suggestion and ways of infiltrating his or her life, causing offence and danger. Children know a great deal about technology that adults do not know because, no matter how modern parents are, they would not have had access to the technology available to children today. Children pick up technological developments easily and are well attuned to what is going on in the world.

I introduced the Stay Safe programme at the behest of the Irish National Teachers Organisation, INTO, when I was Minister for Education in 1991. We developed the programme with the head psychologist in the Department of Education at the time, Mr. Tony O'Gorman. We formulated the programme on a hot summer afternoon, it was piloted that winter and was then implemented in every school in the land. We made it public that we were developing the programme.

The following Saturday, a bus carrying around 30 parents from Cork opposed to the Stay Safe programme drew up at my clinic in my house in Athlone. I will never forget this because I knew they would not all fit in my modest house. Six or seven of the parents came in to berate me, a parent of growing sons, and to ask whether I knew what I was doing because I might be leading children down paths of depravity they could not understand if I allowed the programme to proceed. Various other moral strictures were mentioned and, I understand, the following Sunday there were sermons in several city and rural parishes in Cork against the Stay Safe programme warning parents not to allow their children partake in it.

Photo of Brendan RyanBrendan Ryan (Labour)
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That is hardly likely to have happened in the city as Bishop Murphy was in charge and he was a long way from such nonsense.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I am telling the Senator what happened. I was quite appalled and I was always struck by how they did not understand that the programme was being implemented for the good of children. I was deemed morally lax and it was thought that I had gone down the primrose path of dalliance with all sorts of depraved people who were leading me in the wrong direction.

I am concerned that the programme is available only in 75% of schools, and Senator Henry and I raised this matter at the time of the creation of the Commission to Inquire into Child Abuse. Deputies questioned the Minister for Education and Science, Deputy Hanafin, on this issue, yet the level is still at 75%. Why is the Stay Safe programme not in every school in the land? It is a commonsense programme telling children who meet adults frequently how to deal with strangers who approach them, and it began long before the Internet was popular.

I decided to speak on this Bill for the purpose I have outlined and was very pleased when I heard what Senator Henry said. I am sure the parents who came to my clinic meant well for their children, as do all parents regardless of whether they lean to the left or right. They want their children to grow into good adults with a better quality of life, but in the case of the Stay Safe programme, they were incorrect and that opened my eyes.

When one tries merely to address many issues affecting life in Ireland, one can find oneself in another situation, surrounded by a wall and with a label around one's neck suggesting one is, for example, in favour of the sexual exploitation of children. The same applied to the divorce referendum. If one dared utter the word "divorce", it meant one supported it entirely for every man and woman in the land.

Photo of Brendan RyanBrendan Ryan (Labour)
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Senator O'Rourke took a peculiar position on the first referendum.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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To my undying delight I spoke and voted in favour of it.

Photo of David NorrisDavid Norris (Independent)
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Good woman, we would not doubt her.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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I was pleased with my decision on how I would conduct myself during the divorce referendum campaign. At that time my 18 year old son was entitled to vote for the first time. I did not comment when he told me he was leaving for the polling station and he cycled off and cast his vote. On his return he told me he had cast his first vote in favour of divorce. When he said I had not tried to influence him I told him he was a grown adult and could make up his own mind.

It is interesting that attempts are made to put people in boxes or pin labels on them if they dare mention a certain word. I remember during the abortion referenda that one would be labelled an abortionist for speaking in a certain manner. I note from recent large advertisements in the Irish Examiner and another newspaper that a new campaign to grill politicians on stem cell research is beginning. It appears that when candidates for election call at constituents' doors we will be put right by being asked certain questions. While I am in favour of candidates being asked questions on any issue, we should be allowed an opportunity to engage in intelligent discourse without being labelled for daring to have a conversation.

I welcome the Bill. The Minister was correct to move swiftly to stop panic, although I believe the matter being addressed would be encompassed by other legislation. He acted with commendable speed. While I accept Senator Quinn's point that the Seanad is supposed to be a scrutinising Chamber, all Senators who wish to speak to the Bill will be able to do so. I hope the passage of the legislation will result in more comfort and security for adults and children.

Photo of Brendan RyanBrendan Ryan (Labour)
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I apologise to the Leader for heckling. I welcome the Bill and apologise to the Minister on behalf of my colleague, the Labour Party spokesperson on justice matters, Senator Tuffy, who has been unavoidably delayed. As I recently told another Minister, I am more disorganised than usual. I apologise in advance if parts of my contribution are less coherent than I would wish.

Several speakers have referred to the Stay Safe programme. Unfortunately, I was absented from the services of the House in the period when the programme was introduced because I was not a Member of the Seanad. During that time, I was a member of a school board of management in an area of Cork city where Stay Safe was vigorously supported by the local parish priest. A diocese on the periphery of Cork city is presided over by a bishop of less than enlightened views on many issues. Perhaps parts of the city's periphery were identified as——

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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Is it the area from which the bus came?

Photo of Brendan RyanBrendan Ryan (Labour)
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I do not want to get involved in an exchange which might identify the individual in question. However, I want to defend the then Bishop of Cork Michael Murphy who was not of that breed and was, in many ways, most enlightened, as I am aware in both a personal and public capacity.

Photo of David NorrisDavid Norris (Independent)
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He is unusual in that diocese.

Photo of Brendan RyanBrendan Ryan (Labour)
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As a result of the publicity associated with the Stay Safe programme, a parents' meeting we held at the school was packed. The meeting scrutinised the programme in great detail and the overwhelming response of the largely female audience was that it was not nearly blunt, explicit or clear enough to satisfy parents. The idea that the introduction of the Stay Safe programme gave rise to a major parental backlash was a myth, albeit a successful one, created by mischief-makers. I invite the Minister to dig a little to ascertain the reason one in four schools has failed to adopt the programme. I may be wrong but I believe these schools are concentrated in certain dioceses.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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The Senator may be right.

Photo of Brendan RyanBrendan Ryan (Labour)
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Stay Safe would not be in the style of a certain bishop of a diocese near Cork city.

I welcome the Bill. At the risk of attracting the sort of headline I do not want, I am mindful of a letter written by the late Judge O'Leary about some issues in life and society and the apparent determination to create a climate in which people can be easily branded. It is in this context that I will make a few comments which I hope are reasonably thoughtful.

The Labour Party had a hand in the legislation and the Minister responded promptly and efficiently when we raised the matter. The Bill is necessary to close a loophole. Without wishing to blow my own trumpet, in the past two years I have identified mistakes in three different Bills, two of which originated in the Other House. One, the National Economic and Social Development Office Bill, which had been in the Dáil for four years, had an in-built contradiction and the Minister had to return to the Other House to amend it. The second Dáil Bill was the Residential Institutions Redress Bill. Several weeks ago, amendments tabled by the Government to deal with the issue of nursing homes were shown to be in conflict with the Government's stated purpose and the legislation had to be amended on Report Stage. Quality assurance would be useful to ensure such errors do not occur. Given that none of the Bills in question was rushed, perhaps more questions and answers are required in the Office of the Parliamentary Draughtsman.

Pursuant to this issue, I will raise a number of points I am sure my Labour Party colleague in the Dáil raised last night. My party believes the 2006 Act mistakenly removed the offence of gross indecency from the Statute Book. We could argue forever about this offence but it emerged from the Ferns report that a particularly nasty, since deceased, individual whom I will not name was prosecuted with the offence of gross indecency. I understand the Minister indicated at the time that the offence was obsolete and perhaps he is correct. It was identified as one of a range of offences to protect children from offensive behaviour by adults. I invite the Minister to elaborate on the matter.

My party has tabled an amendment on another issue I wish to raise. I am enthusiastic about legislation to protect children and prevent grooming. We all accept that the offence of grooming should mean inducing, inviting or coercing children to engage in an illegal act. The phrase used in the Bill is "sexual exploitation". Who would object to people being penalised for anything which is intended to lead to the sexual exploitation of children? I unequivocally accept the requirement to do so.

Why does the provision prohibiting grooming, which is defined as meeting a child for the purposes of sexual grooming, require that a person must meet with a child on two or more previous occasions? Why is it that a person who can be shown to have met a child or attempted to meet a child for the purpose of sexual exploitation must do so on several occasions before he or she is deemed to have committed an offence? I may be missing something here but I would like this explained. If a person of my age meets a child and it is clear from the context of the first meeting that the purpose of that meeting is sexual exploitation, I do not see why a second or third meeting is required for an offence to be committed.

Another issue identified by my party's legal advisers relates to paragraph (b) of section 6. This paragraph provides for an amendment of section 3(3) of the Child Trafficking and Pornography Act 1998 in regard to the definition of sexual exploitation of a child. One element of this definition is "inviting, inducing or coercing the child to participate in or observe any activity of a sexual or indecent nature". Members should note that this provision does not refer to illegal activity of a sexual or indecent nature but any such activity. We should consider what this means.

Where does this provision leave a 17 year old who has a date with a 16 year old and engages in the types of activities in which teenagers have engaged for generations? Such activities are not illegal in this State and God forbid they ever should be. We cannot assume our children will remain entirely celibate from age 13 until adulthood. There is a degree of experimentation that happens among teenagers under 17 years of age. I understood us all to know the difference between such activity and sexual exploitation.

As the Bill is written, however, it is clearly an offence to invite or induce a child, as defined by this legislation, to participate in any activity of a sexual nature. We should think this through carefully. Is this what we want to do? We might all wish teenagers were more restrained in their activities; all generations would like the generation of teenagers that follows to be better behaved. One can only imagine how well behaved teenagers must have been 1,000 years ago. Marcus Aurelius or somebody else commented on the sinfulness of the next generation.

We are the first generation, however, that is in danger of turning what is part of growing up into an offence. The simple solution, which I understand is contained the British legislation, is that the definition of sexual exploitation should be amended to specify that an offence takes place where a child is invited, induced or coerced into participating in or observing any activity of a sexual or indecent nature that is unlawful. This would offer sufficient protection. As it stands, we are in danger of creating the offence of dating. That is the legal advice I have received. We are essentially saying that two teenagers who engage in activities that go beyond simply sitting in the cinema looking at each other are committing an offence. We all remember what it was like at that age.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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The Senator's time has expired.

Photo of Brendan RyanBrendan Ryan (Labour)
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I invite Members to consider how many of us——

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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We have limited time to debate this Bill and it is vital that everybody has an opportunity to speak. Senator Ryan is depriving another Member of the chance to contribute.

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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Senator Ryan is speaking as the leader of the Labour group.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I am sorry but his time has expired.

Photo of Brendan RyanBrendan Ryan (Labour)
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The normal procedure is for the Chair to warn speakers when they have one minute remaining. I got no such warning but I apologise for exceeding my time.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I have just taken the Chair and I am informed that Senator Ryan's time has expired. There is limited time for other Members to contribute.

Photo of Brendan RyanBrendan Ryan (Labour)
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I have no problem with that. There is no need for the Acting Chairman to get annoyed with me.

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I was not annoyed.

Photo of Brendan RyanBrendan Ryan (Labour)
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I was not objecting.

Photo of Tony KettTony Kett (Fianna Fail)
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Senator Ryan could have shared some of my time.

I welcome the Minister of State, Deputy Parlon. I am pleased to make a contribution to the debate on this important Bill. There is no more heinous crime than that of sexual abuse, which involves the taking away of the innocence of childhood. Society rightly acknowledges the seriousness of this crime and abhors the fact that such individuals exist. It is our duty as legislators to ensure we are tough on those who perpetrate such abuses and to make certain no loopholes are available to them to wriggle out of prosecution. This Bill serves to close one such loophole.

This debate is about protecting children. The courts have a duty to do so by way of sentencing. Parents, teachers and society in general have a duty to protect children not only through the upholding of laws but through policies and procedures for their protection, such as those in place in schools, and through education itself. Perhaps most important is the vetting of individuals who work with children. We have seen more of this in recent times but there was a time when people who worked with children could come from any walk of life. Thankfully, that is no longer the case, particularly in the case of children who are vulnerable. The establishment of vetting procedures is a welcome development.

All of us have concerns about the lifestyle of young people. Many of them, for example, are involved in underage drinking and sexual activity. I appreciate the problems they face; they are growing up in a different era to that of their parents and have more disposable income than ever before. We all encountered peer pressure as teenagers but it seems to be a greater factor in the lives of today's young people. The question we must ask ourselves is whether our laws should reflect this reality. I am of the view that our laws should create rather than reflect social norms. It is our job to legislate for the type of society in which we live. Unfortunately, many of our laws reflect the society in which we once lived. The values we hold dear and those to which we aspire should form part of our law-making. Those values must include ensuring that children can enjoy life as children should and in the knowledge that society will support and protect them in every way possible.

It has been observed that much of the legislation in this area is scattered across numerous statutes. It is almost impossible for any Minister to focus on all of them. Justice legislation is complicated enough without the added difficulty of it being scattered across various Acts. I can understand how this oversight could happen. It is difficult to keep one's eye on all the balls all the time.

Several speakers have referred to the dangers associated with the Internet. It is a wonderful tool in many ways and the most prominent technological feature of the 21st century. Almost every child is an Internet whiz-kid, much more so than those of us who are older. Unfortunately, however, it also brings with it the dangers we are discussing. Young boys and girls can access gay sites, for example, and sites used by predatory adults. They can access anything without the knowledge of their parents.

In many instances, parents do not have a notion what they are getting up to because they are whiz-kids on the computers. I am forced to watch "soaps" at home from time to time and I was watching an episode of "Eastenders" the other night in which two youngsters were upstairs working away on the Internet. They had installed a camera which allowed them see the adults in the house coming up the stairs. Perhaps that is the norm; it appears to be the norm on "Eastenders". Children are doing what they want on the Internet and parents are reluctant to go into their children's bedrooms and confront them because they are afraid it is not cool, nor do they want to intrude on their children's private time. There is a down side to that, however, in that if they want to be seen as the cool parent, this kind of activity could be going on under their noses without them knowing about it. That is not acceptable.

There are many issues surrounding youth that cause major concern. Advertising and everything to do with the pop culture is geared towards sexuality. I regret to say that it appears some young girls see themselves as sexual objects. They live from weekend to weekend. They go out, drink, do what they do and talk about it for the rest of the week until the weekend comes around again. A difficult and worrying situation has developed and it is one we must legislate for, not to.

Other speakers mentioned the act of planning, preparing and solicitation. That is just as sinister as the act itself. If I read the legislation correctly, someone who is proven to be planning, preparing, soliciting, importuning or grooming children for depraved activity stands to get only a five year prison sentence whereas the Child Trafficking and Pornography Act 1998 provides for a 14 year sentence for the distribution of child pornography. Those two crimes are of equal depravity and would command a similar sentence. I may be wrong in that regard but I do not believe so. I am delighted with what we are doing in the House this morning. I welcome the fact that the Minister moved swiftly on it and I wish the Bill a safe passage through the House.

Photo of David NorrisDavid Norris (Independent)
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I give this Bill a guarded welcome. Like most people who tell the truth, I regard the shared experience of sexual pleasure with another human being in a loving relationship as one of the highest forms of physical and spiritual ecstasy, and we should say that.

Photo of Brendan RyanBrendan Ryan (Labour)
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Hear, hear.

Photo of David NorrisDavid Norris (Independent)
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Those people who are privileged to have that experience should cherish it but there is a danger, because of the language being used now, that we automatically equate "sexual" and "indecent" as if they are replaceable terms, and they are not. I am not saying there is not sexual exploitation but let us not pretend that sexual pleasure is dirty or reprehensible. It is a wonderful gift. That is why it must be treated sensitively and examined carefully.

I regret that, once again in this area, we are dealing with rushed legislation. Senator Quinn was right when he remarked on the requirement on this House, under the Constitution, to carefully examine legislation, and had some hesitations about what was happening here today. I do not believe that is the case. Even though it may well be that almost every speaker who wants to speak will get to speak on Second Stage, there is virtually no provision for the teasing out of amendments in a considered way and then to return to the issues after the Minister's explanation on Report Stage. That is not what this House is about. In fact, it is a flat contradiction of what we are about.

The timing of this Bill, in the run up to an election, could not be worse because it provokes the kind of posturing we saw in the debate in the other House last night. I watched "Oireachtas Report" last night and I was appalled by the pious posturings, particularly from Fine Gael Members. I like Enda Kenny, by and large, but I was disgusted by what I saw. The kind of posturing that went on would make a rat puke.

I want to say, while the Minister of State, Deputy Parlon, is in the Chamber because it is not the first time this has happened, that there were suggestions that he was less interested in protecting the welfare of children from sexual abuse or that he regarded such matters as minor offences. That is a deeply dishonest and wrong suggestion. I may differ with this Minister on a number of aspects but it is outrageous that any politician should make that kind of accusation. That is what we get when this kind of legislation is introduced in an election period. The Minister showed considerable tact in the way he dealt with suggestions from both the Labour Party and the Fine Gael Party and he has addressed the problem of grooming.

In the absence of the Minister, Senator Ryan raised a query about grooming and wondered whether one meeting constituted grooming. I do not believe it can because as I understand it, grooming is a deliberate preparation over a long term to make children believe it is a normal process. In some horrible cases they were given the impression that it was a religious duty to co-operate. That constitutes violation.

To return to the first point I made about the profound involvement in all of our natures of the sexual instinct, we must also face reality. A few minutes ago the Visitors Gallery was full of teenagers and I would say the hormone level was through the ceiling. That is the reality and politicians do nobody any favours if they pretend the citizens of this country are eunuchs until they are 16 years and 11 months.

My colleague, Senator Henry, referred to the recent case, which is troubling in many aspects, and said the young man involved was solicited by a large number of men. That is not the case. This young man placed an advertisement on a gay website stating that he was 19 years of age and inviting correspondence and contact. A considerable number of the gay people who contacted him refused to have anything to do with him when they found out that he was underage, deleted his number and told him to stop the contact in his own interest. Those people behaved responsibly.

I do not use the computer. There is something in me — I know I am old-fashioned — that revolts against the mechanical element of looking for partners through a machine. I do not like it. It does not appeal to me but I know it is very 21st century. I pay tribute to the young man in question for his courage, integrity and the way in which he told the truth throughout what must have been an extremely difficult time. This State has let that young man down because we have never protected the interests of young gay people. We still have the exemption of the churches from the operation of the equality legislation. That copper-fastens bullying by both students and teachers of young gay people in schools. Report after report indicates that 80% of bullying contains a homophobic element but nothing is ever done about it, although the Stay Safe programme was mentioned.

In the case which was widely reported, reports started off referring to a paedophile ring. There was no paedophile ring. There is a great deal of rubbish written in newspapers. Senator O'Rourke's contribution was excellent. She spoke about the need to be allowed to discuss these issues in a rational manner without being automatically labelled.

The Minister, in anticipation of the fact that we might not have time to have long discussions, took up the question of the amendments. Among others that I tabled was one about honest mistake. I did so partly because I saw "Oireachtas Report" last night and suggestions were made from the Labour Party benches that there might be a constitutional problem. The Minister mentioned the question of mens rea, which is very interesting. As a distinguished lawyer, I am sure he is right. He then stated this was a fundamental part of the Constitution and that we may well have a referendum to knock it out. If it is so fundamental, if it is automatically assumed and if it is a good thing, why are we then knocking it out?

I wish to make a point about protecting people who are mentally handicapped, with which I agree. However, let us not be too simplistic about this. The mentally handicapped have various degrees of handicap. Some of them can be pretty bloody cunning. I know of a case of a person who was borderline handicapped and used that condition to approach people as sexual partners and then blackmailed them. He made a career out of it. What about protecting the rights of those people who under this law would be copper-fastened as criminals? We must realise this area is not fully black and white.

I believe we will need to return to legislate on this subject. Let us have a full sexual offences Bill that deals with the whole situation and not during the run up to a general election. Senator Ryan mentioned the second last paragraph in page 6, which refers to "inviting, inducing or coercing the child to participate in or observe any activity of a sexual or indecent nature." God bless The Tailor and Ansty. What about a farmer who takes a young lad aged 16 and a half to the yard to see the bull service the cow? Under this section the farmer could go to jail, which is daft because the wording is so loosely drafted. We must protect people from real exploitation. We must be honest and admit the sexual identity of young people, which is true.

The Minister should be aware that parents inevitably resent that their children are sexual beings because they see it as part of growing away from them. We need only consider how fathers often react to their daughters' marriages.

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I do not want to cut into time for amendments on the other Stages of the Bill. I fully agree with the views expressed in this House that we need a sexual offences Bill of a comprehensive kind. Although it was not given major coverage, I indicated last night in the Dáil that I intend to ask the codification committee, which has just been established and is operational in association with University College Dublin, to make this area its first priority. The existing law is spread over a series of statutes, which is why this mistake was made in the first place. It is very impenetrable and is now becoming increasingly interlinked with cross-references between all these Acts. The second reason for doing so is that the joint committee that deals with child protection, which was established in the aftermath of the emergency legislation last year, was of the view that we needed a comprehensive statute.

I do not like rushed legislation. I wish to say this here because I would get howled down if I tried to say it in the other House. When I asked for a fortnight or three weeks on the previous occasion last year I was howled at from the editorial columns asking me on what planet I was living. I said there was no great big black hole and that we had time to get it right.

Photo of David NorrisDavid Norris (Independent)
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I remember that.

1:00 pm

Photo of Michael McDowellMichael McDowell (Minister, Department of Justice, Equality and Law Reform; Tánaiste; Dublin South East, Progressive Democrats)
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I was screamed at as if there was something wrong with my head and I could not understand the issue. I was abused for not seeing the obvious. I cannot understand why all the people who accused me then of not being sufficiently urgent about it are now running columns in the same newspapers giving out shots about me for the consequences of legislating in haste. It is strange. Of course I realise that it is the prerogative of a commentator to be always right and it is the prerogative of a politician to be always wrong.

I would prefer to have more time to discuss this legislation. I was asked by the Labour Party to deal with it as a matter of urgency. I said I would make time available in the Dáil yesterday for the purposes of doing so. I did that. I took on board the Fine Gael proposal because I did not want controversy about matters I was not doing. I know Senators would like to have a week to consider this entire matter. However, we need a comprehensive sexual offences Bill. We need it to be properly thought through and published, followed by a public discussion. I expect that process to happen later this year. It cannot happen until we sort out the issue one way or another as to whether we will have a zone of absolute protection. There is no point in legislating yet again on this issue and then claiming there is a constitutional difficulty with what we are doing. We need to get all our lines clear in this regard.

I was condemned with vigour last year when I asked for a little time — I said on radio that a couple of weeks would not make any difference. Clambering mobs made all sorts of demands. People told me that something was missing in my head if I could not see how urgent it was to act immediately. When I was taking the Bill through the Dáil I said I was concerned that I had noticed several mistakes in the text overnight. However, I get no credit for any of that — that is the way the world is. In that self-pitying mode I will sit down.

Photo of David NorrisDavid Norris (Independent)
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The Minister is the very one who wants newspapers to be able to lie about politicians as much as they want.

Question put and agreed to.

Committee Stage ordered for Wednesday, 7 March 2007.