Seanad debates

Thursday, 8 November 2012

Matter raised under Standing Order 30

 

2:50 pm

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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A matter was raised by Senator Norris under Standing Order 30. The Leas-Chathaoirleach has allowed the matter. The debate will not exceed 90 minutes. Was there an agreement on speaking times?

Photo of David NorrisDavid Norris (Independent)
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There was an informal agreement to which we will all adhere.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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Will the acting Leader, Senator Gilroy, propose the allocation of time for speakers?

Photo of John GilroyJohn Gilroy (Labour)
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Each spokesperson may speak for ten minutes and, if he or she so wishes, may share time.

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

Photo of David NorrisDavid Norris (Independent)
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I request the adjournment of the Seanad to discuss a matter of urgent national importance, namely, the decision of the Supreme Court concerning the improper use of public funding in information leaflets and on websites relating to the children's rights referendum.

I welcome the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald, to the House. I regret that this has happened, but it is a fact which we must face. This is an important day for Seanad Éireann. It shows we can play a significant role in the public life of the country. On many occasions I wished to raised items under Standing Order 30, but not once was it accepted, including the occasion of the national strike. It was simultaneously ruled out of order in the Seanad while it was accepted in the Dáil. Interestingly, we have had the reverse of that situation today. I spoke to some members of the Technical Group because of my concern about the possible impact of this decision on the children's rights referendum and they tabled a motion under private notice questions, which was ruled out of order. They also tabled a motion under Standing Order 32, which was ruled out of order. This is the only Chamber in which this issue will be discussed.

This is a very significant day. The Supreme Court made a unanimous decision which overturned last Thursday's decision by Mr. Justice Kearns on a matter raised in the High Court by an Irish citizen. It is urgent that we discuss this issue.

Obviously mistakes were made. I think they were made with good intention. It is very significant that the court held that the substance of the referendum was not to be affected by this ruling. I believe the referendum must go ahead and should go ahead. I hope the vast majority will support the referendum. There is no question or doubt that it is a serious matter when the Supreme Court decides unanimously that the Government behaved illegally. I do not believe it did so intentionally but there is a temptation in the preparation of this type of leaflet to do so. In previous referenda on which I have taken various sides, I have felt that different Governments have displayed this tendency to put in material. It is almost an irresistible temptation.

Ms Justice Finlay Geoghegan of the Referendum Commission has behaved impeccably. The Referendum Commission has been technically accurate and has brought equality in publishing all the information. That is an important point because it means the public has been given access to information which is 100% accurate. Leaflets were sent out by a Department which contained a mis-statement, which was one of the findings of the court. That mis-statement was that certain actions and trends continued. That implied that they had already existed previously. That was inaccurate. I think every ninny in this country knew that. I certainly knew it. I was astonished to hear somebody foolish, because there are foolish people on both sides, saying that nothing will be changed by the referendum. If nothing was to be changed by the referendum, why in God's name would one have it? Of course, things will change and they will change for the better for children. That is the reason that it is so important that this referendum should be passed.

It is improper for a Government to use State funding to promote one cause or the other and the Supreme Court isolated a number of instances where it felt this is what had happened. However, it gave only a partial judgment today. That is also interesting because it did not reserve judgment completely. Its judgment found the Government to be in error, but it assumed, correctly in my opinion, that the Government would immediately rectify that and it acted promptly to remove the website. It is impossible to recall all the leaflets.

We have a track record in this regard. Under the Referendum Act 1994, a citizen has a right to impugn the result of a referendum if he or she feels it is inappropriate by making a referendum petition to the High Court. This was done after the divorce referendum. A distinguished former Member of this House, Mr. Des Hanafin, whom I remember well and with affection although I differed with him on many issues, impugned the result of the divorce referendum using this mechanism of a petition to the High Court. At the High Court hearing, it was held that misleading information had been supplied to the public in that instance but the court held it did not significantly affect the outcome of the referendum. I believe the referendum will go ahead. It is important that Seanad Éireann offers the opportunity to the Minister to indicate to the Irish public that it will go ahead. She is perfectly entitled to argue the merits of the case, which I hope she will. One of the problems in sustaining this kind of petition is that one must show that the outcome was affected. Clearly a very large number of people had the intention of voting in favour of the referendum. In my opinion the only thing that is likely to be shown is that declined as a result of what has happened today.

Mistakes have been made on both sides. I believe this is a genuine error and that the Government will act as speedily as possible to redress it. It has already started to do so and the referendum will go ahead. I believe and hope that it will be won. I have indicated the mistakes that were made by one side, but one must accept that the majority of the Irish electorate are sensible, intelligent people and that is another test that was applied in the Hanafin case. It was found that one ought to automatically assume the capacity of the electorate to sort matters out for themselves. I have listened to every radio programme about the referendum and practically everybody said they had not bothered to read the documents yet. I doubt if the documents had that much impact. One must be honest in public life. I admit that mistakes were made by the side I support but they were made on the other side as well. I wish to state my horror at what I saw on television on Monday night. I congratulate the Minister for her very reasonable attempt to defend the position against a tide of demagoguery and mis-statement.

First, it was suggested that the loving homes of good parents in this country would have their front doors battered in and the so-called "austerity police" - a new title that has been invented maliciously for this purpose - would take children away to a recently refurbished Letterfrack where they could be tortured. Second, we heard the appalling, disgraceful and contemptible slur that foster parents get involved in fostering to get a ¤325 payment. The third and perhaps most insidious suggestion was that the so-called Roscommon incest case - as one cannot name those involved, one has to use such a title and I emphasise that the person who made this allegation used that title as well - was the best argument in defence of a "No" vote. As the Minister knows, it is the best argument in favour of a "Yes" vote. To say otherwise is a perversion of the truth of the most malignant kind. Members will remember the case in question, in which parents sexually and physically abused their own children over a lengthy period of time. When the State attempted to intervene, it was hindered by people who may have been misguided but the results of whose actions were evil beyond belief. They assisted the family in question and harassed the organs of the State which were trying to protect those children. For three years or so, they were subjected to another continuing hell. That would not have happened if this referendum had been passed at that time. As somebody who cares about children and the welfare of all our citizens, I hope we will pass the referendum next Saturday despite this mess. I will be out at the crack of dawn to vote for it.

3:00 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Children; Dublin Mid West, Fine Gael)
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I thank Senator Norris. I want to start by calling for the focus to be kept on the substance of the amendment that is being put to the people two days from now, the primary objective of which is the protection of children. When we debated the Thirty-First Amendment of the Constitution (Children) Bill 2012 in this House at the beginning of last month, it was clear that there was great unanimity and a strong sense of purpose about the achievement of positive constitutional change for children. As legislators, we should not lose sight of that in the crucial final hours before the people have their say. The contributions to last month's debate that were made by Members of this House were striking in their depth of commitment. Senators were forceful in their determination to work for the right outcome for children through the proposed constitutional change. I urge all Senators to maintain their focus on the enduring prize that the proposed amendment represents for the rights and protections of children. They should not let this be overshadowed by today's ruling.

When I addressed the House at the start of the Second Stage debate on the Bill, I said that as legislators we were giving the entire voting public a rare opportunity to look at how we view children in society and how that view is reflected in the Constitution. I noted that the Bill was giving this generation an opportunity to send an enduring positive message to future generations that we place the protection and welfare of children among the highest values of our society. Few changes matter as much as this one. Most of what we do in these Houses is about the issues of the day. By its nature, legislation has to be about delivering for the needs and problems of today. Constitutional change goes far beyond that in terms of the imprint it puts on values for upcoming generations. This referendum gives us a rare and historic opportunity. I know from the cross-party support the amendment has been given, and the unprecedented endorsement it has received from civil society groups across the broadest of spectrums, that when the choice is carefully considered, we will not want the position whereby children are virtually invisible in the Constitution to endure.

The conflicting claims regarding the amendment need to be subjected to objective scrutiny before we arrive at our decision on Saturday. The Constitution rightly recognises the centrality of the family and the special position of parents in the care and upbringing of their children. This is guaranteed by the Constitution under Articles 41 and 42. I would like to make it absolutely clear that the referendum will not alter this position. As it makes no change to Article 41, it does not remove or diminish the recognition given to the family under the Constitution. Equally, it does not remove or alter the rights and duties of parents under the Constitution to provide, in accordance with their means, for the education and care of their children. Unfortunately, exceptional cases arise where some children do not have a safe and nurturing family life. Hard and sometimes awful experience has taught us that we need to be clear in affirming the rights of these children to be protected. We also need to provide for the possibility of adoption for children in long-term foster care and a second chance for them to have a loving family that protects their safety and welfare.

I urge everybody to read the actual proposed wording of the article. While it is drafted in constitutional language, it is only four sections long. The stability treaty, by contrast, was 20 pages long. I am sure the clear purpose of this amendment will come shining through to those who read it. I encourage people not to be distracted from the crucial issue of considering the substance of the proposed constitutional change. I remind those who are seeking further factual information that a considerable amount of detail is available from the Referendum Commission. I remind Senators that the Referendum Commission has engaged in a substantial information campaign that has not been the subject of any objections. The four main changes proposed in the referendum are explained on the commission's dedicated website, referendum2012.ie, and in its booklet, which was delivered to every home. These changes, as explained by the commission, relate to the following: an explicit obligation to protect and vindicate rights of children; State intervention if parents fail in their duty; adoption; and the best interests and views of the child. The chairperson of the independent Referendum Commission answered questions on "Morning Ireland" about the referendum and provided considerable information of a factual nature. She confirmed that no change to Article 41 of the Constitution, or to the current constitutional protections afforded to the family and parental rights, is proposed. She said that the view of the Referendum Commission is that parents will not take a back seat to the State if this referendum is passed. She confirmed there is no link between the referendum and the UN convention on children's rights and that the convention will not be given any constitutional standing.

The Government fully respects this morning's Supreme Court ruling and is complying fully with it. We moved immediately to act on the ruling in terms of the distribution and publication of material. In addressing the ruling, I stress that we do not have the detailed judgments from each of the five judges. We have the short ruling that was delivered by the Chief Justice on behalf of the court at 11 a.m., in which she said that the individual judgments would be delivered on 11 December. I emphasise that my Department acted in good faith and with the best intentions to ensure the material complied with the McKenna principles. The provision of public information by the Government has been undertaken in good faith at all times, based on the prevailing view of what is permitted by the McKenna judgment. The McKenna case found against the then Government's funding of a publicity campaign that was explicitly designed to advocate a "Yes" vote. In her 1995 judgment in that case, the current Chief Justice, Mrs. Justice Susan Denham, said the McKenna principles do "not infringe upon the right .... of the Government to give information, to clarify situations, or to give explanations and deal with unforeseen matters and emergencies."

The Government initiated this proposed amendment and received the unanimous support of the Oireachtas in putting the amendment to the people. In doing so, there is a duty to provide explanations and information which can be understood by members of the public. Previous referendums have been criticised because of a perception that inadequate information was available to the public. In the intervening period since the McKenna principles were first enunciated, different Governments have sought to discharge their obligations to provide information and explanations for citizens in previous referendums through the use of websites, leaflets, booklets and advertisements.

The provision of public information on the amendment took account of practice in previous referendums. Public information has been provided in a similar fashion and at all times the Government sought to operate in compliance with the McKenna principles. Very considerable efforts were made by my Department in this regard, which efforts were acknowledged by the President of the High Court. In fact, even the plaintiff in his submission to the Supreme Court said there was no challenge to the proposition that the Department had endeavoured to comply with the McKenna judgment as it understood it. A detailed protocol underpinned the drafting of content for the booklet and website and the Office of the Attorney General was consulted for legal advice throughout the process.

This is a complex area of law and I expect that the detailed judgments to be delivered by the Supreme Court on 11 December will assist in formulating an approach to information provision in future referendums. These judgments will be a basis for further legal clarity and direction and studied carefully by the Government. I welcome the statements of Oireachtas Members from both Government and Opposition sides who share my view that the focus must remain on the children's rights amendment. There will be other occasions to debate the wider issues arising from today's ruling; the detailed individual judgments due in December will provide an important basis for such a debate.

I fully acknowledge the Supreme Court has found that not all of the material published complied with the McKenna principles. Until today's decision the Government had acted in line with the decision handed down by the President of the High Court on 1 November. At all times the Government acted in good faith based on its understanding of the McKenna principles and with the best of intentions in informing the people about the amendment. Today's ruling has not changed either the truth or relevance of the message that the rights and protection of children should be fully visible within the Constitution. It is important, as Senator David Norris said, to be clear that the Supreme Court has not commented on the merits or substance of the amendment. It has expressly said the "substance of the proposal is a matter for the people alone". The public relies on us to show the leadership on this issue, while not losing sight of the importance of what has emerged from the Supreme Court ruling. These are not mutually exclusive and we can and must attend to both, with the imminence of the children's rights referendum deserving of our greatest attention, energy and focus at this time. The substance of the amendment is the most important thing for us to focus on at this stage. This is a once in a generation opportunity and we should not be distracted from its importance. What this debate must be about is the rights of children being recognised in the highest law in the land, through a dedicated "Children" article in the part of the Constitution called "Fundamental Rights"; what happens in the rare cases where parents fail; making important changes to update adoption law; ensuring the views of the child are taken into account and that their best interests will be at the heart of all decisions about the child in certain legal proceedings; all of these changes without making any amendment to Articles 41 and 42 of the Constitution about families' and parents' responsibilities.

There has been a detailed debate and people are aware of the important issues at stake. I urge everyone to come out and vote "Yes" on Saturday on this important amendment. Clearly, addressing children's rights and protections in years to come will be about the wording in the Constitution, whether it is amended or otherwise, not the background to the referendum. The referendum on Saturday offers us all an opportunity to vote for additional, real constitutional protections for children.

3:10 pm

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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With the agreement of the House, I wish to share time with Senators Thomas Byrne and Jim Walsh.

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

Photo of Terry LeydenTerry Leyden (Fianna Fail)
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I thank Senator David Norris for speedily tabling a motion under Standing Order 30 and the Cathaoirleach for agreeing to take it. The House has shown that it can be proactive in dealing with urgent and serious matters. I welcome the Minister and thank her for coming to the House.

It was a shock to hear the decision of the Supreme Court this morning. It should have delivered a more comprehensive response, rather than waiting until 11 December, when a decision will be made in the referendum on 10 November. I do not blame the Government for being enthusiastic about the referendum because the issue was deliberated on in the Oireachtas and at the special committee of all Members of the Houses for three years. At this late stage every effort is being made to thwart the efforts of the people to vote on Saturday, but at the end of the day they will make the decision to vote "Yes". We have an opportunity to use whatever influence we have to ensure a "Yes" vote on Saturday, which is vitally important.

The position is that the McKenna judgment has been difficult for Governments since it was handed down. Of course, there must be a separation of the Supreme Court and the Oireachtas. However, the McKenna judgment has tied the hands of Governments on matters of great importance. As all parties in the two Houses have endorsed the referendum, it is important to re-energise the campaign in the next 48 hours in support of children. The referendum is 40 to 50 years too late. However, the Oireachtas is united in this regard and I will not use the opportunity to criticise the Government in its decision. However, because of the judgment all future Governments will have to be extremely careful to study the decision of the Supreme Court to ensure there will not be an over-enthusiastic endorsement of a proposal to ensure a "Yes" vote in a referendum. As Fianna Fáil spokesperson in the Seanad, I suggest this is not the time to debate the merits of the ruling, as that can be done later in a calmer light. I support Senator David Norris's enthusiastic endorsement in this regard. The hour is nigh. This opportunity will not be presented again for the children of Ireland.

I agree with Senator David Norris on the position of foster parents. How could one rear a child on the amount of money mentioned in this day and age? I fully realise the responsibility on such parents in providing accommodation, food, heat and lighting. This is an opportunity to say "thank you" to them for their work during the years. Many of them sought to adopt the beautiful children in their care but were deprived of the opportunity to do so under the Constitution. We will change this on Saturday with a clear "Yes" vote.

Photo of Thomas ByrneThomas Byrne (Fianna Fail)
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I endorse what my colleague has said about the importance of a strong "Yes" vote in the referendum, for which Fianna Fáil is continuing to press the case. However, that task has been made more difficult by the Government's actions in this regard. It follows on from criticisms made during the fiscal treaty referendum and the rejection of the Oireachtas inquiries referendum last year. Lessons have to be learned. There is no point in discussing the merits of the Supreme Court judgment. That is the law of the land and must be applied.

I am concerned that an e-mail issued to Members of the Seanad before this debate from the Minister's private office with a press release calling for a "Yes" vote. Surely, the lessons should have been learned from the Supreme Court judgment today. It is not appropriate that a press release calling for a "Yes" vote should issue to us. It should not issue from the Minister's private office, as it did at about 5.30 p.m. when we all received a copy. I certainly received it. There must be a strong "Yes" vote and we cannot let this episode frustrate our efforts. The people must realise on what they are voting. Let all parties, please, work together to ensure a "Yes" vote, as otherwise the referendum may not be passed.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I endorse the comments of the previous Senator and compliment Senator David Norris on tabling the motion. I also compliment the Minister who has led the campaign with a great degree of energy. It has all-party support. When I read the document, it crossed my mind that it was positively in favour of a "Yes" vote. However, it did not register with me that there might be an issue with this because, obviously, I agreed with the content of the document.

Senator Norris raised the issue as to whether the result could be impugned because of this Supreme Court decision. I do not know if the Minister is in a position to answer this. Obviously, this matter has been most unfortunate from the point of view of the smooth passage of the referendum. While I know time is short, has any consideration been given to publishing a more balanced summary in a newspaper, perhaps, which might meet the spirit of the Supreme Court?s decision?

3:20 pm

Photo of David NorrisDavid Norris (Independent)
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The Referendum Commission should have done it.

Photo of Jim WalshJim Walsh (Fianna Fail)
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The only issue I would have concerns the adoption Bill. Will the Minister consider increasing from three to five years the period for young children who will not be in a position because of their age to give their consent to adoption? It may give people sufficient time to provide for their children.

While I accept there are additional protections afforded to children under this referendum, will they be extended to the unborn child? That has been raised with me by many people.

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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I wish to share time with Senators Eamonn Coghlan, Paul Coghlan, Keane and Healy Eames.

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

Photo of Maurice CumminsMaurice Cummins (Fine Gael)
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This is a matter of national importance and I commend Senator Norris for raising it in the House. I also thank the Minister for Children and Youth Affairs for giving a wonderful explanation as to the position on this matter. I commend Senator Norris for his strong call for a ?Yes? vote in Saturday?s referendum.

The Supreme Court decision has no impact on the forthcoming proposed amendment to the Constitution. This referendum, as spelled out by Members and the Minister earlier, is about protecting vulnerable children, supporting families, giving children a voice and treating all of our children equally, particularly in adoption. Saturday?s referendum will allow people to have their say on this and respond to the many reports, which we have debated in this House, on improving child protection. It will ultimately be the people?s choice and I urge the people to vote ?Yes? for children?s protection in the Constitution.

Photo of Paul CoghlanPaul Coghlan (Fine Gael)
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I compliment and thank Senator Norris for raising this matter under Standing Order 30, the Cathaoirleach for accepting it and the Minister for responding comprehensively to it while giving the Government?s outline which is supported by all parties. The Minister has exercised great energy and enthusiasm in putting forward a position which we all heartily endorse.

On 11 December, when we have the detailed written judgments of the Supreme Court justices on this matter, we will have time to examine it in a calmer light. As Senator Cummins said, the judgment does not in any way affect the proposed amendment in enshrining children?s rights in the Constitution. Saturday is an opportunity of which we must avail. Mr. John Waters has significant amends to make and I invite him again to make them before polling day on Saturday. In this debate, he has been shockingly insulting to foster parents and all the good they have done down the years. This should not be let go.

Photo of Eamonn CoghlanEamonn Coghlan (Independent)
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I have not spoken much on this matter in the past few months. While 17 reports and over 20 years of debate have taken place around this issue, I note we have heard those calling for ?Yes? and ?No? votes in the forthcoming referendum. However, we have not heard from children themselves. I am only new in politics but this seems to be the first constitutional referendum for which there is full cross-party co-operation. All parties and Independents have said ?Yes? to this referendum. When I asked the Minister for Children and Youth Affairs who would say ?No? to giving children?s rights a place in the Constitution, she told me I would be surprised by who would come out of the woodwork at the last minute. I must say I have been very surprised by who has and their scaremongering of ordinary decent families. For several days, many such families have told me they have changed their minds because of what they heard on television from the ?No? campaign.

I have first-hand experience of two types of abuse. A dear friend of mine, whose case has been documented in the courts, was systematically abused from nine years of age, with his sister, by the person who was meant to protect them and give them their voice. His life and family were ruined by this. I know of two young boys who walked out of their family home at 15 years of age because they had no father since they were born and their mother was an alcoholic. Through the medium of sports, they were able to pick up their lives again. They had no one to go to. They had their own voices but they were not heard. This referendum will protect children?s rights and ensure children?s voices will be heard in future. We must vote ?Yes? on Saturday for children to be heard.

Photo of David NorrisDavid Norris (Independent)
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Well said.

Photo of Caít KeaneCaít Keane (Fine Gael)
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It is important in recognising the independence of the Judiciary that the Government respects today?s decision of the Supreme Court. When this process started several months ago, I pointed out how the Supreme Court would need the wisdom of Solomon because the 1995 McKenna judgment was only 25 pages long. I hope today?s judgment is longer because to achieve a 50:50 balance, does one have to invent ideas against a proposal if there are only a few against it?

Photo of Caít KeaneCaít Keane (Fine Gael)
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Is the Government meant to put information out just for the sake of it?

It is important to note that the High Court found the material used in the commission?s leaflet was neutral, balanced and had the primary aim of informing the public about the forthcoming referendum. We all know that while doctors differ, patients die. With no disrespect to the Judiciary but while judges differ, Governments are charged with that task. We must examine the McKenna judgment, make sure everyone understands what it is about and get a judgment longer than 25 pages.

The previous referendum failed. A survey on why it failed showed that 60% of it was due to lack of information and if one does not know, one votes, "No". I rest my case.

3:30 pm

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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I thank the Minister for attending and Senator Norris for deeming this a matter of national urgent importance.

Nothing changes our position. We still advocate a "Yes" vote as strongly as ever. In fact, it reinforces its importance and urgency. Perhaps it makes our case even stronger. Rather than seeing us as being derailed a little at this hour, let us strengthen our resolve. It shows we must get the vote out in even stronger numbers in the next 36 hours.

It is important to state repeatedly, as others have, that the Supreme Court ruling does not affect the substantive wording of the referendum. The referendum is about the protection of vulnerable children. It is about that 1% who will need help and protection. It is about supporting families that may go through vulnerable times and about the equality of all children in adoption terms.

The timing of this ruling is poor. Let us ward against what happened with the referendum on Oireachtas inquiries with the former Attorneys General coming out at the eleventh hour. The message that must go out to the public is that we need to hold our resolve on this.

I abhorred the words of Mr. John Waters on Monday night on "The Frontline" because of the way he derailed and debased foster parents.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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I ask the Senator to refrain from naming persons who cannot be here to defend themselves.

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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I say this because of personal experience with foster parents and having adopted two children, both of whom were in wonderful foster homes. What those parents do is incredible. They give love unconditionally and they bring those children to doctors. They stand by and watch them visit their birth parents. They deal with the fallout of serious custody issues. When he says they are doing it for the money, I ask whether Mr. Waters would do it. Let us stand together and ensure we deliver a "Yes" on Saturday.

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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I thank the Minister for coming to the House.

We are all aware the Supreme Court has today made a ruling against the Government by finding that its ¤1.1 million spend on the children's referendum information campaign did not comply with the principles of the McKenna judgment. It should be noted that the Supreme Court did not make any order against the Government but rather rightly assumed that the Government would cease publishing and distributing the material, which the Government did with immediate effect.

The Supreme Court has reserved its judgment until 11 December. While I welcome the opportunity and thank Senator Norris for putting forward the motion, in ways this debate is premature and we will need to revisit this debate post-11 December to discuss and answer questions on the handling of referendum information campaigns, the role of the Attorney General and the McKenna principles. We need to do it when we are dispassionately unconnected from a particular referendum because these issues are overdue for discussion.

In the immediate term with polling day less than 40 hours from now, we must not lose sight of the principles at the heart of the amendment or the fact that many other wholly non-State-funded parties have campaigned long and hard to secure the successful passage of this referendum, none of which has been impugned in any way by today's judgment. I also note, because there is confusion among the public around this judgment, that the Referendum Commission has not been impugned in any way by it. I understand the commission has been given ¤2 million in funding and it has been informing the public.

There have been many vocal opponents of the amendment against whom I have had the pleasure to debate on the national airwaves and at public meetings up and down the country. We must find a better way to inform the public and have debates because all too often I found myself in yes-no debates in which the "No" side had nothing to do with the wording that was in front of us. Yesterday, for instance, when I was on RTE's "Drivetime", Ms Dana Rosemary Scallon asserted on several occasions a statement which I counteracted. She even asked if I was calling her a liar. RTE's "Drivetime" announced only a few minutes ago that she has contacted the station acknowledging that she was in error and retracting all of her comments, but yet I was put in a position of having to counteract and not having an opportunity to inform the public of the debate at hand.

The Referendum Commission clarified in a statement that a referendum cannot be postponed. The law on the conduct of referenda is set out in the Referendum Act 1994. Once that order is made the only circumstance in which it may be changed, according to the Referendum Act, is if a general election is called, and there is no sign of that. There are no other circumstances and for good reason. The Houses of the Oireachtas passed this referendum Bill. We in this House had an excellent debate on it.

I agree with the Minister that we must maintain our focus on the substance of the referendum. I did my own research and I decided to vote "Yes", not because the Minister, the Government or anybody else told me to do so. I did so based on the facts which can be summed up as follows.

This referendum will make children visible in the Constitution. It will provide a signpost to the courts, to policymakers and to decision makers that children are independent rights holders. It will shift the focus away from the failure of parents to the impact on the child and allow the State to intervene earlier and proportionately where necessary. By voting "Yes" in this referendum people will enable the 2,000 children who have been in foster care for over five years to become eligible for adoption. This referendum will give a voice to children and ensure that they are heard in judicial decisions that affect their lives. Finally, this referendum will ensure judicial decisions are made in the child's best interests.

I recall in June, shortly after the child death review group report came out, expressing my profound sadness and the sense of responsibility and shame I bear as a member of a society that has systematically failed to protect the most vulnerable children. On rereading the report in preparation for this referendum, it was obvious that if the referendum was passed and in place, the outcomes for these children would be different. What is striking, and the most disturbing feature, was the invisibility of children in the social work case files. Children would have been required to have been heard. This referendum will change that. It will give children a voice. It is not a panacea but it is a first, albeit critical, step.

I have been campaigning for many years on this referendum. I should also note that some citizens have already started voting. Islanders have started voting. My own dad voted in hospital on Monday last. We cannot take this away. This referendum is now in place. It has a chance to culturally shift how we view children.

I heard the five Independent Deputies state it should be postponed and I took the duty to contact each member in the Seanad Independent group. The six Independent Taoiseach's nominees strongly believe that the poll should go ahead on Saturday.

There is a duty on all of us to vote on Saturday and I call on the public to come out in force to support a "Yes" vote, not because the Government has told it but based on the facts. The ruling today did not reflect in any way on the information and state it was misinformation. What it stated was that it was potentially promoting one side. It did not in any way question the facts put forward.

We all could list the campaigners for the "No" side, and it would be quite a short list. I am aware of so many organisations campaigning for a "Yes". I merely want to put these on the record. This is the long list of "Yes" campaigners: the Bar Council of Ireland, the Disability Federation of Ireland, the Gaelic Players Association, IMPACT, INTO, the Irish Congress of Trade Unions, the Irish Countrywomen's Association which never before stated how it would vote in a referendum and on this one, stated it is too important, the Irish Foster Care Association, the Law Society of Ireland, Macra na Feirme, Mandate, Fr. Peter McVerry, Dr. Dáire Keogh, president of St. Patrick's College, Drumcondra, Dr. Geoffrey Shannon, Pól Ó Murchú, a solicitor who is working in the courts every day with such children-----

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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I ask the Senator to refrain from naming individuals.

3:40 pm

Photo of Jillian van TurnhoutJillian van Turnhout (Independent)
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That is no problem. I shall name organisations: Arc Adoption, the Association for Criminal Justice Research and Development, Barnardos, BelongTo, Bessborough Centre, the Border Counties Childhood Network, the Campaign for Children, the Children at Risk in Ireland Foundation, Catholic Youth Care, Childminding Ireland, Children in Hospital Ireland, Children's Rights Alliance, COPE Galway, Crosscare, Doras Luimní, Down Syndrome Ireland, Dublin Rape Crisis Center, Early Childhood Ireland, Educate Together, Enable Ireland, EPIC or Empowering People in Care, Family Resource Centre National Forum, Focus Ireland, Foróige, GLEN, Home-Start, the Immigrant Council of Ireland, Inclusion Ireland, Inspire Ireland Foundation, the International Adoption Association, the Irish Association of Community Training Organisations, Irish Council for Civil Liberties, Irish Penal Reform Trust, Irish Rural Link, Irish Second-Level Students' Union, the Irish Society for the Prevention of Cruelty to Children or ISPCC, Irish Youth Foundation, Jack and Jill Children's Foundation, Kits' Own Publishing Partnership, Kilbarrack Youth Project, Lifestart Foundation, Marriage Equality, Miss Carr's Children's Services, Mothers' Union of Ireland, MyMind, National Parents Council Primary, National Women's Council of Ireland, National Youth Council of Ireland, No Name Club and Older and Bolder, One Family, One in Four, OPEN, Parentline, Parentstop Donegal, Pavee Point, Peter McVerry Trust, Rape Crisis Network Ireland, Saoirse Women's Refuge, Saol Project, Scouting Ireland, Social Care Ireland, Sonas Housing Association, Spunout, Society of St. Vincent de Paul, St. Patrick's University Hospital, Start Strong, Tennis Ireland, The Ark, Body Shop Ireland, the Integration Centre, the Irish Association of Social Workers, Treoir, UNESCO Child and Family Research Centre, UNICEF Ireland, Women's Aid, Young Christian Workers, Young Irish Film Makers, youngballymun, Youth Advocate Programmes, Youth Aftercare Support Service, Youth Work Ireland and Youthreach.

That is an impressive list of "Yes" organisations that are campaigning. They have campaigned for years for the referendum, not just for the past few weeks. Let us put all of that in perspective. Many people are campaigning for a "Yes" vote. I call on the public to vote "Yes" because children need to be seen as independent rights holders. The referendum is a once in a lifetime opportunity and I urge people to vote "Yes." It is the first step and the Minister knows that I shall tackle her on many more issues. I believe that strengthening children's rights in the Constitution will make my hand stronger when challenging the Government's policy on children's rights.

Photo of Aideen HaydenAideen Hayden (Labour)
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I wish to share my time with Senators Bacik and Moran.

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

Photo of Aideen HaydenAideen Hayden (Labour)
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I thank Senator Norris for tabling the motion. I also congratulate the Minister and thank her for attending.

The campaign has been varied. I am disappointed that we have not had a wider debate on the referendum. Like a number of other people have said, we were all concerned that something would come out of the woodwork in the last days of the campaign and, inevitably, it did. There has never, in the history of the State, been such a degree of consensus among civil society as there is on the amendment. If one goes back over all of the constitutional amendments one will find that not one of them enjoyed the same level of consensus. One can easily lose sight of that fact.

A couple of important matters have been stated but they could be stated again. Nobody has suggested that the Government acted in anything other than good faith. The Supreme Court did not recommend an injunction to halt the referendum, nobody impugned Mrs. Justice Finlay Geoghegan or the Referendum Commission and we still have not received the full judgment of the Supreme Court. Those are the facts. On the other side, I am disappointed with the debate over the past number of days. I am particularly horrified by some of the suggestions made on the other side of the debate that children are the chattels of their parents. Somewhere along the line it has been suggested that it is not all right for the State to hold the role of ultimate protector of the child. I am sure that everybody who has worked with children or in politics is privileged to be able to go to the doors of the country. I have been in homes - I am not exaggerating - where children crawled around naked and were thrown food as if they were dogs in a pit. That is the reality for some children and we should not apologise for ever saying that we are their ultimate protectors. On Saturday we will have an opportunity to stand up and be counted. That is what the referendum is about and is the message that should be sent by the House.

Photo of Ivana BacikIvana Bacik (Independent)
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I thank Senator Hayden for sharing time. I also thank Senator Norris for raising the important issue and tabling the motion. Today is a good case for using the procedure. I thank the Minister for attending. I also thank her for making a clear and concise argument for the "Yes" side and for stating her position.

We all respect the decision of the Supreme Court. The Government has stated, as has the Minister stated today, that it respects the decision and will comply with it. It is important to stress that none of us has seen the judgment or the reasons for the decision. As the Supreme Court has stated that the judgment will not be published until 11 December, our comments are based on a very limited knowledge of same. We know that the plaintiff did not argue that the Department or the Government had intentionally acted in breach of the McKenna judgments. The court appears to have accepted that there was, in good faith, an attempt to comply with the McKenna judgments.

The Government also acted in accordance with the established practice since the 1995 McKenna judgment and the High Court judgment of 1 November 2012 in which the President of the High Court, as Senator Keane has said, accepted the manner in which the information was being provided and that there is a clear obligation to provide it. In the past the Government was criticised when information it provided was inadequate.

It is also important to note that the relief granted by the court was declaratory only and concerned the text and the extraneous material published by the Government. No injunction was granted to stop the distribution of the material or prohibit the referendum being held. I have examined what the court has said. It does not affect the holding of the referendum or the integrity of the result. The court stated that it was a matter for the people. The referendum shall go ahead on Saturday and the Supreme Court decision will not affect the outcome. I am desperately disappointed to hear that five Independent Members of the other House have sought a deferral of the referendum. It is far too important an issue for them to play a political game with. Their comments are very disappointing. They are also legally wrong to suggest that the outcome will be tainted by the ruling of the Supreme Court in respect of certain information provided by the Government.

I commend the Minister for the calmness and clarity that she has brought to the debate today, particularly in response to the judgment and in the past week, even though she was subjected to intense provocation by the "No" side. There is an extraordinary level of support for the referendum and Senator van Turnhout has eloquently demonstrated that. She is correct that this is a once in a lifetime opportunity to place a value system within the Constitution for a framework under which law and policies on the care and protection of children can be developed. We cannot miss this opportunity and I urge, as others have done, a high turnout and a strong "Yes" vote on Saturday.

Photo of Mary MoranMary Moran (Labour)
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I welcome the Minister to the House and commend her for the terrific amount of work that she had done on the referendum. My fellow colleagues on all sides of the House share that view. I also commend Senator Norris for tabling the motion.

We cannot reiterate enough that the substance of the referendum's proposal is not affected by today's ruling. We need to send that message and repeat it as often as we can in the next 36 hours. The referendum shall go ahead on Saturday. The argument for putting the explicit rights of children in the Constitution remains the same as it did 19 years ago when it was first called for by Mrs. Justice Catherine McGuinness.

The amendment provides an explicit guarantee that the State will protect the rights of children. It will allow for adoption that is in the best interests of children, regardless of marital status. It will ensure that the best interests and views of a child will be taken into account when the courts make decisions on particular cases. We have all made the same argument and it was done in an eloquent manner today.

On a personal note, I spoke to a foster parent the other day whom I had not met for a number of years. I happened to bump into her and asked her about the children in her care. She became extremely tearful when she told me about a child whom I had known. He had been in my son's class and had made his communion on the same day. He had been completely abandoned by his parents but she looked after him. She had bought his First Holy Communion suit and looked forward to the day when she was informed by the social worker that his parents had decided that she could not go to his First Holy Communion, despite all of her efforts.

The little fellow, who has an intellectual disability, went to the First Holy Communion ceremony and immediately afterwards was taken kicking and screaming - I saw this myself - to respite care, where he was left for the weekend. Our own child was being taken out for a meal, as were all the other children who were present. I ask how anyone could even consider voting "No" and people must come out to vote. I urge everyone in the country to turn out to vote on Saturday. They should not only vote but should vote "Yes" in the interests of all children.

3:50 pm

Photo of Sean BarrettSean Barrett (Independent)
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I wish to share time with Senator Cullinane, if possible.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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These are ten minute slots. Is that agreed? Agreed.

Photo of Sean BarrettSean Barrett (Independent)
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I certainly will use less time than that. I welcome the Minister to the House and commend her on the calm manner in which she has conducted this campaign. She has been a model to us all and has reached out to many people. As I understand it, and I thank Senator Bacik for her legal exposition, the judgment does not affect the substantive issue and I urge people to vote "Yes" for this proposal on Saturday. Not too long ago, Geoffrey Shannon and Ian Elliott spoke most movingly in this Chamber to the North-South body on the rights of children. One may take it that support for this extends to Stormont and all the parties therein, all of which were represented in this Chamber on that day, as well as to all the parties in this House and this is valuable to know. Children everywhere on the island want a "Yes" vote on Saturday and I commend Senator Norris on raising this matter as an item under Standing Order 30, as well as the Cathaoirleach and the Leas-Chathaoirleach for facilitating this important discussion.

Photo of David CullinaneDavid Cullinane (Sinn Fein)
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I join other Members in commending Senator Norris for tabling this motion. It is important for Members to have a debate on the court decision. It is also important that Members do not blame the courts or the judges for today's decision because I believe the judgment gives cause for concern. On behalf of my party, I wish to state its clear view that the referendum should go ahead as planned on Saturday. Sinn Féin is also clear that the people of the State should support wholeheartedly the referendum and should vote in favour of it. It is an important step in safeguarding children and it should proceed and I hope be passed by the people. Moreover, it is important to remember that for my party, the amendment is a first step towards incorporating the United Nations Convention on the Rights of the Child into Irish law. The Minister is aware that Sinn Féin would have preferred a stronger wording but that said, this proposal is a highly significant step in the right direction and should be supported by the people of the State. It also is fair to acknowledge this is a significant judgment of the court, which upholds the principles of fairness in referendum campaigns that were set out in the McKenna judgment. On a previous occasion, when the Minister was in this House, Sinn Féin warned against this and asked that the 50:50 rule be upheld and that the situation be avoided whereby the State could find itself in court and be subject to such court judgments. However, we are where we are in this regard.

I sincerely hope and firmly believe that this court judgment will not in any way take away from people's views that this constitutes an important advance for children and that it is about children's rights. The issue of Government spending has been raised in previous referendum campaigns and has been a continuing cause for concern. It will be necessary to study carefully the full judgment of the Supreme Court when it becomes available. The Government's approach to the conduct of referendums must be seriously questioned in light of this judgment. It is not the first time the Government has pushed the limits on the McKenna judgment, as some boundaries surely were pushed during the presentation of the austerity treaty. The McKenna and Coughlan judgments pertain to ensuring fairness in referendum campaigns. They were hard-won by citizens and should be respected in law and in spirit. However, it would be a setback for children were the reaction to this court outcome to jeopardise the adoption of the proposed constitutional amendment to children's rights. I again take the opportunity to call on the people of Ireland to vote "Yes" on Saturday.

I also believe it is important to note that once this referendum is passed, as I sincerely hope it will, this will not be the end when it comes to children's rights but will only be the beginning. Members will be aware I have repeated the point in this House ad nauseam that children in this State live in poverty, go to school hungry or not properly clothed and get sick and do not receive the treatments they need as quickly as they should. Consequently, I seek the passing of the referendum and the enshrining of children's rights in the Constitution. Moreover, all the issues about protecting children, supporting families, reducing inequalities in adoption and recognising children in their own right in the Constitution, as proposed in this amendment, are very important.

However, I also support parliamentarians and legislators doing the right thing to support children at budget time and that Members will make decisions that take children out of poverty, rather than pushing them into poverty. I will echo the sentiments of Senator Hayden when she spoke of potential failures of the past in respect of children in care. All Members accept that in the past, the State failed on occasion when it came to children and there is no doubt but that institutions failed children. However, one also should be mindful that many people who work for the State have done Trojan work in protecting children in State care. I know of many social workers and people who work in the HSE who have provided the utmost care and in some cases the best care a child can possibly get. This point should not be lost when one discusses issues such as the protector of last resort being the State and past failures. Everyone accepts there were past failures but Senator Hayden is correct that one cannot be a politician for as long as have been many Members and not come across instances in which children were not being properly looked after by their parents. I personally have seen examples of this and in such circumstances, one must ensure that children come first. Their health, well-being and safety must come first and that is what this referendum is about. I will conclude by again urging the people of the State to vote comprehensively and overwhelmingly in favour of this constitutional amendment.

Photo of Catherine NooneCatherine Noone (Fine Gael)
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I add my voice to the overwhelming support this referendum enjoys in this House and to commend the Minister for her work to date. As previous speakers have stated, this is a referendum that has been campaigned for and awaited for years. I do not believe that any judge in the High Court or the Supreme Court would have intended an outcome that would jeopardise the actual referendum going ahead. It unquestionably should go ahead as nothing has changed with the substance of the proposed amendment and I urge people in the first instance to be sure to exercise their vote and obviously to vote "Yes".

While I mentioned this point on the Order of Business this morning, a number of weeks ago I expressed concern and foresaw a situation which has arisen with the "No" side, whereby people are given a voice in this referendum campaign who have no substance to their argument. Members have referred to the making of incredibly inaccurate statements and I refer to the situation to which Senator van Turnhout alluded, in which a certain individual had appeared on radio to speak against her and who was speaking untruths. No amount of clarifications will rectify the fact that a huge number of people will have heard her first statement and will be misinformed as to the substance of what she was saying. I am heartened by the cross-party support this evening. I hope people will come out to vote and I urge them to vote"Yes" in favour of children.

Photo of Jim D'ArcyJim D'Arcy (Fine Gael)
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I welcome the Minister to the House and congratulate her in the strongest possible way on the magnificent work she has done in bringing this referendum before the people. While it has been forthcoming for many years, the Minister has brought it through.

The people and the children of Ireland will forever be indebted to her for that. I ask those who might be contemplating voting "No" whether they want to say that the rights of children should not be recognised in the highest law in the land. Do they believe that in the rare cases where parents fail, the State should not intervene? Do they believe we should not make important changes to update this country's adoption law? Do they believe we should ensure the views of the child are not taken into account? Do they believe the best interests of children should not be at the heart of all decisions that are made? I ask them not to go out to vote until they have reflected on those questions. When they have done that, they can vote on this matter with a clear conscience. I congratulate the Minister again.

4:00 pm

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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That concludes the statements on the matter raised under Standing Order 30.

Photo of David NorrisDavid Norris (Independent)
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Could I take a minute to make an observation?

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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As there is no precedent for that, I ask the Senator to resume his seat.

Photo of David NorrisDavid Norris (Independent)
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There is no precedent for this debate.

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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We will not set a precedent today.

Photo of David NorrisDavid Norris (Independent)
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With the indulgence of the Chair-----

Photo of Paddy BurkePaddy Burke (Cathaoirleach of Seanad; Fine Gael)
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This kind of debate has occurred on a number of previous occasions. There is no precedent for the Senator, any other Senator or the Minister to make a contribution at this stage.

Photo of David NorrisDavid Norris (Independent)
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It is important to recognise those who have stayed behind for this important and unanimous debate.

The Seanad adjourned at 6.40 p.m. until 2.30 p.m. on Tuesday, 13 November 2012.