Header Item Prelude
 Header Item Business of Seanad
 Header Item Commencement Matters
 Header Item Archaeological Sites
 Header Item Site Acquisitions
 Header Item Medicinal Products Expenditure
 Header Item Motor Insurance Coverage
 Header Item Order of Business
 Header Item Criminal Law (Sexual Offences) Bill 2015: Committee Stage (Resumed)

Thursday, 14 January 2016

Seanad Éireann Debate
Vol. 245 No. 2
Unrevised

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Chuaigh an Cathaoirleach i gceannas ar 10:30

Machnamh agus Paidir.

Reflection and Prayer.


Business of Seanad

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I have received notice from Senator Susan O'Keeffe that, on the motion for the Commencement of the House today, she proposes to raise the following matter:

The need for the Minister for Arts, Heritage and the Gaeltacht to transfer responsibility for Killery graveyard in Ballintogher, County Sligo to the Office of Public Works.

I have also received notice from Senator Thomas Byrne of the following matter:

The need for the Minister for Education and Skills to liaise with Meath County Council to ensure delivery of the proposed linear park in Ashbourne, County Meath, part of which is zoned to be located on lands owned by the Department.

I have also received notice from Senator Colm Burke of the following matter:

The need for the Minister for Health to clarify the reason Xolair, an approved treatment for severe allergic asthma, has not yet been introduced under the HSE drugs payment scheme or drugs reimbursement scheme for persons who are asthmatic.

I have also received notice from Senator Trevor Ó Clochartaigh of the following matter:

An gá atá ann go ndéanfadh an tAire Airgeadais ráiteas i ndáil le cleachtais an tionscail árachais lena ndéantar earnálacha tiománaithe ar leith, fir óga ach go háirithe, agus daoine atá ag tiomáint gluaisteáin os cionn deich mbliana d’aois, a phionósú, agus an bhféadfadh an tAire a léiriú céard iad na bearta atá déanta ag an Rialtas chun aghaidh a thabhairt ar an tsaincheist seo.

I have also received notice from Senator Denis O'Donovan of the following matter:

The need for the Minister of State with responsibility for the Office of Public Works to investigate and, if possible, solve the problem of the continual flooding of houses along the Ouvane river between Ballylickey Bridge and Pearson's Bridge near Bantry with a view to cleaning and dredging the banks of the river to prevent further flooding.

I have also received notice from Senator Denis Landy of the following matter:

The need for the Minister for Defence to make part of the vacant Army barracks in Mullingar available to the Irish United Nations Veterans Association through a long-term lease so as to ensure a permanent meeting place for retired soldiers.

I regard the matters raised by the Senators as suitable for discussion. I have selected the matters raised by Senators Susan O'Keeffe, Thomas Byrne, Colm Burke and Trevor Ó Clochartaigh and they will be taken now. Senators Denis O’Donovan and Denis Landy may give notice on another day of the matters they wish to raise.

Commencement Matters

Archaeological Sites

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I welcome the Minister of State at the Department of Arts, Heritage and the Gaeltacht, Deputy Joe McHugh.

Senator Susan O'Keeffe: Information on Susan O'Keeffe Zoom on Susan O'Keeffe I thank the Cathaoirleach and welcome the Minister of State.

  I want to ask about the Killery Graveyard in Ballintogher. I am not entirely sure whether it is correctly described as a graveyard or a burial ground and appreciate that there is a difference. The Department of Arts, Heritage and the Gaeltacht has efficiently and properly written a fully report on the maintenance and care of historic graveyards. It has noted that historic graveyards play an important role in the cultural life of Irish people.

  The graveyard in question dates back to the 15th century, which makes it one of the oldest graveyards in existence. It is in a state of deep disrepair. It is also a grave for both Catholic and Protestant. People wishing to visit the site are now really not able to due to its state and, with a church located nearby, there is a fear of falling masonry. My understanding is the site is not in the care of the OPW. In bringing forward my request I seek to clarify in whose care the graveyard ought to be. Is it the OPW? If it is not in the care of the OPW, it ought to be. I would appreciate if the Minister of State could offer some clarity on the matter. Obviously, these places are very special and precious to the local community and the wider community. In the context of our history and heritage, it is important that sites of this nature are not lost. Of course, damage is occurring at the site on an ongoing basis and there is concern that the problem will become something that cannot be fixed. I await the Minister of State's response in terms of where the duty of care lies with this graveyard, given its great age and the fact that it is a Catholic and Protestant place of rest.

Minister of State at the Department of Arts, Heritage and the Gaeltacht (Deputy Joe McHugh): Information on Joe McHugh Zoom on Joe McHugh Guím bliain fé mhaise ar an gCathaoirleach agus ar na Seanadóirí go léir fosta.

  I thank the Senator for tabling this matter. She has mentioned that people can no longer visit their loved ones in the graveyard. There is a similar situation in my county at the old Kilmacrennan Abbey. This is a matter to which we need to give serious consideration.

  As the House will be aware, the Minister for Arts, Heritage and the Gaeltacht who is unavailable today is charged with responsibility, under the National Monuments Acts 1930 to 2004, for the protection of our rich and vitally important archaeological heritage. The monumental remains at Killery, County Sligo are of considerable interest in that they provide a link with the past history of the parish which can be traced back to at least the 14th century.  They also provide evidence of local ritual practices. The graveyard is still in use today. It contains many 19th and 20th century headstones and some low uninscribed grave markers, as well as several chest tombs and recumbent grave slabs. In the north-east quadrant lies a thin stone slab. It is broken and partly covered in sods of grass, but it has two round and five oval stones known as the curing stones. These stones were discovered in the graveyard when it was dug up and levelled in the 19th century. Adjacent to the stones is a small rectangular stone to which, according to early reports, was tied a piece of string that was known as the straining thread. These stones, together with the string or thread were reputed to cure strains, pains and aches in people and animals. The ruins of the mediaeval parish church are incorporated in the southern boundary wall of the graveyard and bear witness to a number of alterations that have been made over the centuries. It appears to have been rebuilt, possibly in the 18th century, when the east gable was reconstructed. The church also appears to have been reduced in size at this time by the insertion of a cross wall.

  The monuments at Killery are protected under section 12 of the National Monuments Acts, 1930 to 2004, as recorded monuments and two months notice must be given to the Minister, in writing, of any proposed work at these monuments. However, the care and maintenance of these monuments is the responsibility of the local authority; in this instance, Sligo County Council. It is appropriate that as a graveyard still in use the local authority would continue to be responsible for its management in this way. The Department manages and maintains almost 1,000 individual monuments at 768 locations across the State. Undoubtedly, the Senator is familiar with many of these such as the great megalithic cemeteries at Carrowmore and Knocknarea, the wonderful monastic complexes at Inishmurray Island and Church Island, Lough Gill, the superb high crosses and round tower at Drumcliff, the magnificent Sligo Abbey and, of course, the remarkable castle at Ballinafad. The existing portfolio reflects the rich and varied diversity of the county's built heritage. Regrettably, the Department does not have the resources to take on additional sites at this time; however, I can assure the Senator that we will continue to keep this issue under ongoing review in the light of changing resources.

Senator Susan O'Keeffe: Information on Susan O'Keeffe Zoom on Susan O'Keeffe I thank the Minister of State for his response. He has rightly pointed to the great and extraordinary variation and richness of the built heritage in County Sligo. While I appreciate it is the responsibility of Sligo County Council and that the Department does not have the resources to take on additional sites at this time, what are the criteria in deciding whether such a site should be taken over by the Department? Is it about scale? He mentioned Knocknarea and Carrowmore, the two large sites. Is it when a local authority states it cannot take care of it or when the Department deems it ought to be because it is more important than something else? That is the issue on which I am not clear. Should I seek further clarification from the Department as to the point at which something is handed over to the Department and is no longer in the care of the local authority?

Deputy Joe McHugh: Information on Joe McHugh Zoom on Joe McHugh To be helpful, I will cite an example in my county. The abbey in Rathmullan is under the ownership of the Church of Ireland, but there is an ongoing discourse between the heritage officer at Donegal County Council and the Department of Arts, Heritage and the Gaeltacht and the Office of Public Works is involved. It may be idea to get Sligo County Council to organise a meeting between the Office of Public Works and the Department of Arts, Heritage and the Gaeltacht. I will do what I can to help facilitate that meeting if the Senator wishes to pursue it.

  While the Minister does not have the wherewithal to intervene directly in this instance, there may be opportunities for the local authority to source funding to have remedial repairs carried out to the structures and make the sites safe for visitors. Financial support is provided by the Department through a number of structured schemes for the conservation and protection of heritage buildings. There is the structures at risk fund to enable conservation works to heritage structures in both private and public ownership that are protected under the Planning and Development Acts and are deemed to be at significant risk of deterioration. On 21 October 2015 the Minister launched a new €2 million scheme, the built heritage investment scheme, for the repair and conservation of protected structures. This scheme will operate in 2016 via the local authorities on the same model as the very successful built heritage jobs leverage scheme which ran in 2014. It is expected to support a significant number of projects across the country and to create employment in the conservation and construction industries, while helping to regenerate urban and rural areas.

  The Heritage Council which the Department funds also provides grants for the protection and preservation of the built heritage. For 2015 the council administered a community-based heritage grants scheme, with funding of more than €500,000 available for projects that contributed to particular heritage themes. The council would be able to advise if this structure would be eligible for funding now or in the future. I hope this information is of benefit. I am aware from my dealings with different local authorities that the heritage officers play a proactive role and do good work. The biggest challenge is in terms of resources. As it is a health and safety issue, surely there could be a mechanism to attract funding to ensure the buildings are safe in the first instance in order that tourists can visit but, more importantly, that people who have loved ones in the graveyards can visit them and are not precluded from doing so.

Site Acquisitions

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne I thank the Cathaoirleach for the opportunity to raise this important matter. There is an issue in Asbourne, County Meath, in respect of a 23 acre site which the Department of Education and Skills has bought to use as a temporary campus for Coláiste De Lacy which is the new much needed second level school. The site is in two parts on two sides of a road. One part is residential with approval for housing under planning permission, the second part is zoned for green space, a linear park and river walk beside the Broadmeadow River. Meath County Council has been in contact with the Department of Education and Skills seeking to open up that site for the community on the land which the Department owns, which is zoned for a linear park. As I understand it, the section zoned for a linear park is not required by the Department for educational purposes.

  In its capital development plan Meath County Council has already allocated and approved €1.1 million to develop a linear park for Asbourne which is one of the fastest growing towns in Ireland. There is a dire need for this type of facility in the town. The park has been planned for at least 12 years. Many houses have been built as part of other zoning objectives, but this park has not got off the ground. The Department of Education and Skills may state it will take a few years to sell the land and move the school on. I understand this site is not needed for the school. It may take a few years for somebody to apply for planning permission for housing construction and in the meantime Asbourne has no public park.

  I urge the Department of Education and Skills and the Minister to liaise with Meath County Council with a view to arriving at an arrangement that would benefit everybody, ensuring the temporary campus for Coláiste De Lacy is secure - I understand it is - but also that the Department plays its part to ensure the zoning objectives in terms of what is required for the community in Asbourne are achieved. Some 77% of the population of Asbourne are under 44 years of age. There is a huge number of young families in the town who need a park and space in which to play. The Department of Education and Skills is sitting on land that is not necessary for school purposes but which could be developed immediately by Meath County Council if it was made available to it. If this was a private developer, we would be urging him or her to open up this land. I appeal to the Department of Education and Skills to work on the issue with Meath County Council. I am grateful to my colleague, Councillor Seán Smith, in Ashbourne who has been working on it for some time and has asked me to raise it in the House. It is a crucial issue and there must be a way for the Department to engage with the local authority with a view to having the land released and, ultimately, to have the park opened for the people of Ashbourne.

Minister of State at the Department of the Taoiseach (Deputy Jimmy Deenihan): Information on Jimmy Deenihan Zoom on Jimmy Deenihan On behalf of the Minister for Education and Skills, Deputy Jan O'Sullivan, I thank the Senator for raising this matter.

  The Department of Education and Skills is aware of Meath County Council's plans to develop a linear park in Ashbourne.  As outlined by the Senator, the proposed park includes a portion of land alongside the Broadmeadow River which is in the Minister's ownership. As the Senator may be aware, the Department acquired two portions of land in Ashbourne to meet school accommodation requirements in the town. One of these portions was acquired for the purpose of providing a campus solution with school accommodation for De Lacy College, Gaelscoil na Mí and Ashbourne Educate Together national school. The second portion, adjacent to the new campus, was acquired to facilitate access to the permanent site and it also facilitates temporary accommodation for the post-primary school pending completion of the construction project.

  The post-primary school De Lacy College opened in September 2014 in temporary accommodation. It is proposed to deliver a 1,000 pupil post-primary school for De Lacy College, in two phases. Construction on the first phase, to accommodate 450 pupils, is under way and expected to be completed towards the end of 2016. Gaelscoil na Mí opened in temporary accommodation at Donaghmore-Ashbourne GAA Club in September 2011. A new permanent 16-classroom building for the school is under construction and this accommodation is also expected to be delivered by the end of 2016. Ashbourne Educate Together national school opened in temporary accommodation in September 2012 and is currently accommodated on the grounds of Ashbourne and District Community Council. Construction is also under way on a new permanent 16-classroom building for this school and, as with Gaelscoil na Mí, assuming no issues arise, this building is expected to be completed by the end of the year.

  Ultimately, some of the lands currently in the Minister’s ownership adjacent to the new Ashbourne school campus will become surplus to the Department’s requirements. When they are no longer needed, the Department may consider disposing of these lands. Any such disposal would be conducted in accordance with the recent protocol for the intra-State transfer of State property assets, as circulated by the Department of Public Expenditure and Reform. In the context of the Department’s close working relationship with Meath County Council in respect of school site acquisitions, the Department will consult the local authority in the first instance regarding any such disposal. Officials in Meath County Council have recently requested the Department to consider the disposal of a portion of the land adjacent to the new campus for the purpose of the development of the linear park. A meeting is being arranged between officials from the Department and officials from the local authority with a view to discussing the matter.

  I again thank the Senator on behalf of the Minister for giving me the opportunity to outline to the Seanad the current position on the lands in question in Ashbourne, County Meath.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Does Senator Thomas Byrne have a question?

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne I do not have a question, but I do have a comment. This is probably one of the more positive responses the community has received in that at least the Department is open to meeting Meath County Council with a view to discussing the matter of the disposal of what we say are unnecessary lands. I certainly hope it happens and that it happens as soon as possible and that Meath County Council can get access to these lands, by lease or purchase, and develop them as a park for the community, as such a park is badly needed in Ashbourne.

Deputy Jimmy Deenihan: Information on Jimmy Deenihan Zoom on Jimmy Deenihan I will convey what the Senator has said to the Minister. The Minister and the Department should be thanked for the major development that is ongoing in Ashbourne. Many communities throughout the country, no doubt, would envy such development in terms of the provision of school accommodation. I am glad that there is co-operation between the Department and Meath County Council.

Medicinal Products Expenditure

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I welcome the Minister of State. I am raising the issue of Xolair - I hope I have pronounced it right - which is a drug for people with severe asthma. I am raising it as severe asthma is associated with a significant morbidity and health care resource. Some 10% of patients with asthma have severe asthma and these patients enduere a disproportionate economic burden. The main cost drivers are the frequency and expense of treatment failure, including asthma exacerbation, associated with unscheduled hospitalisations. Annual health care costs are higher for patients with poor asthma control. A study carried out by Professor Costello found that if this drug were to be made available, there would be a 67% reduction in the number of hospitalisations, a 68% reduction in the number of bed days, a 61% reduction in asthma exacerbations, a 62% reduction in the number of courses of oral drugs and a 90% reduction in the number of workdays lost. This drug has a proven track record, yet it is not available under the drugs repayment scheme. Approximately 310 patients receive the drug, but they are receiving it because it is being funded by hospitals from their own budgets, which will not continue forever. The matter needs to be clarified. Submissions were made in 2014, but, unfortunately, they were rejected. The issue needs to be given priority at this stage.

Deputy Jimmy Deenihan: Information on Jimmy Deenihan Zoom on Jimmy Deenihan I thank the Senator for raising this issue. Decisions on which medicines are licensed for use in Ireland and which are reimbursed by the taxpayer are made on objective, scientific and economic grounds by the HSE on the advice of the National Centre for Pharmocoeconomics, NCPE. The NCPE is a team of clinicians, a pharmacist, a pharmacologist and statisticians who evaluate the benefits and costs of medical technologies and provide advice for the HSE. The NCPE conducts health technology assessments on pharmaceutical products for the HSE and can make recommendations on reimbursement to assist the HSE in its decision-making process.

  The HSE has statutory responsibility for decisions on pricing and reimbursement of medicinal products under the community drugs schemes in accordance with the provisions of the Health Act 2013. It is appropriate that these should not be political or ministerial decisions and that a scientific and evidence-based approach is taken to determining the extent to which patients will benefit from treatment with expensive new drugs and whether this represents cost effectiveness for the health service and the taxpayer.

  In August 2014 the HSE medicines management programme asked the NCPE to carry out an assessment of the clinical and economic dossiers submitted by Novartis Ireland on the cost-effectiveness of the company's drug, Xolair, for the treatment of severe allergic asthma. Novartis proposed that the drug be reimbursed as a hospital-only drug, as it must be administered in a hospital setting. Following its assessment of the manufacturer's dossier, the NCPE did not recommend Xolair for reimbursement as it did not consider the drug to be cost effective for the indicated treatment at the submitted price. The HSE accepted the NCPE's recommendation and the drug is not currently reimbursed under any HSE scheme.

  While I appreciate that some may take the view that the taxpayer should reimburse every licensed medicine for whatever price a drug company demands, the interests of the health service as a whole require that we only reimburse the most effective medicines and only at a fair price. In this way, we can ensure the most appropriate and cost-effective expenditure of the drug budget available to the HSE each year.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I did not receive a copy of the written reply and I am wondering if it could be made available to me. If I could go back to what I said, the research shows that there would be a 67% reduction in the number of hospitalisations, a 68% reduction in the number of bed days, a 61% reduction in exacerbations, a 62% reduction in courses of oral corticosteroids and a 90% reduction in the number of workdays lost. Economically, it shows that the drug is effective and the research is available. I accept that sometimes there is a difficulty in getting a realistic price or quote from the drug companies for a drug, but this matter should be reopened. There is a huge cost to the State in not having it available. Hospitals are providing it for more than 300 patients, but they are providing it from within their own budgets. This matter should be re-examined.

Deputy Jimmy Deenihan: Information on Jimmy Deenihan Zoom on Jimmy Deenihan I will convey the Senator's concerns and suggestions to the Minister. I am sure he will also write to the Minister directly on this matter.

  11 o’clock

Motor Insurance Coverage

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh Cuirim céad fáilte roimh an Aire Stáit agus guím athbhliain faoi shéan is faoi mhaise air.

  Interestingly, I note the headline on an article in today's edition of the Irish Examiner reads, "Standard & Poor’s sees car insurance hikes on road to profits". The article reports that the insurance industry here will be obliged to hike car insurance premiums because the profits of the insurance companies appear to be falling or not reaching the targets they would expect. This relates to the question I tabled today to the Minister for Finance because I seek a statement on the practices of the insurance industry that appear to penalise certain categories of driver, including young drivers in particular, as well as those driving cars that are more than ten years old. I also wish to ascertain what steps the Government is taking to counteract these practices. This issue arises frequently in the area I am from, where I am told young drivers are being asked to pay anything between €2,000 and €9,000 in annual premiums for motor insurance. This, obviously, is not affordable for them and, consequently, they cannot get on the road and take up jobs, attend courses, etc. According to the Irish Brokers Association, some insurers have even stopped providing quotes for drivers in their 20s and insurance costs have been shooting up for months. However, younger drivers are the biggest losers, with average increases of between 20% and 30% in 2015.

  Another issue has arisen about cars that have passed the national car test, NCT, but which are between ten and 15 years old. While everyone welcomed the introduction of the NCT to make sure all motor vehicles on the road were safe, one now finds that insurance companies will not provide quotes for people who own older cars. This is hugely inconsiderate for those living in rural areas who have taken care of their cars. It seems crazy that while the Government, through the NCT system, is stating a car that has passed the NCT is fit to be on the road, an insurance company can turn around and decline to insure it, thereby deeming it to be undriveable. Moreover, someone who wishes to sell on such a car will not be able to sell it because he or she will be unable to get a price for it. Consequently, questions also arise as to why a car that passes the NCT is not being insured. This, obviously, has an impact on rural dwellers and students, as well as those on lower incomes because many of the people who have such older or cheaper cars are on lower incomes.

  Other issues have been raised with me about how the penalty points regime is having an impact on the price of insurance premiums. This morning I learned of a father whose son had come home for Christmas with three penalty points on his licence, having been 10 km/h above the speed limit in a certain area. The son had paid his penalty and was happy to so do, but when the father attempted to insure him for ten days over Christmas, he was asked for €150 in an increased premium. This appears to be blatant profiteering on the part of an insurance company. I have heard of another case in which one penalty point on a person's licence resulted in an increase of €150 in that person's premium. It is not just me, as many consumers also are concerned about this issue. I note that the Consumers Association of Ireland has also called on the Government to conduct an independent review of the insurance industry amid growing concerns that motor insurers are penalising in particular pensioners and younger drivers who tend to drive older cars.

  Some people have suggested this is blatant profiteering by the insurance industry. Some have stated younger drivers, in particular, are being fleeced by the insurance companies. Entities such as Standard & Poor’s stated this morning that it was a profit-driven initiative, but I note the profits of Aviva, one of the companies imposing these increased fees, increased by 13% last year. What is the Government doing to tackle the insurance industry? Is it simply being allowed to do whatever it wishes and charge whatever prices it seeks? Why is the Government not providing for some form of regulation to make sure a fairer system will be in place for young people, those who own older cars and people living in rural areas? What is happening to make sure there is fair play and prevent insurance companies, when they consider they are not making sufficient profits, from targeting certain sectors and segments of society by charging them additional extortionate premiums? In many cases, this renders them unable to work or attend courses or makes them victims of a poor public transport system that cannot serve their needs. In recent weeks Members have seen issues with the insurance industry with regard to flooding, the cost of insurance and whether people can get insurance cover in such scenarios. However, motor insurance is also an area in which huge scrutiny is required. It appears it is a highly unfair playing field and that in this case too, the insurance companies are not playing ball.

Deputy Jimmy Deenihan: Information on Jimmy Deenihan Zoom on Jimmy Deenihan I thank the Senator for raising this current and relevant matter. The Minister for Finance is responsible for the development of the legal framework governing financial regulation and is concerned that there should be a stable insurance sector and that risks to policyholders and the wider financial system are limited. He is aware of reports on the increasing cost of motor insurance. However, the ability of the Government to influence insurance pricing is limited, as insurance companies are required under European law to price in accordance with risk and neither the Minister nor the Central Bank of Ireland has the power to direct insurance companies on the pricing or provision of insurance products. The European Union framework for insurance expressly prohibits member states from adopting rules which require the prior approval or systematic notification of certain matters, including general and special policy conditions and scales of premiums. Furthermore, the EU framework provides non-life insurers with the freedom to set premiums. Insurance companies consider a number of risks when determining the premium for a proposed insurance policy, whether it be a general insurance policy such as motor or home insurance or a life assurance policy. A premium is based on the actuarial calculation of risk.

  Insurance Ireland has advised the Minister that motor insurers make their own individual decisions on whether to offer cover and what terms to apply. They use a combination of rating factors in doing this such as the age of the driver, the type of car used, claims record, driving experience, the number of drivers, how the car is used, etc. Insurers do not all use the same combination of rating factors; prices vary across the market and consumers are free to choose. Insurance companies price in accordance with own past claims experience. For example, where the age of a car is a factor, different insurance companies use different age thresholds. It is important to note that as a result of the implementation of the EU gender directive in the motor insurance sector, there is a statutory requirement in Ireland for the provision of unisex premiums and benefits in insurance. This means that insurers are prohibited from discriminating on the basis of gender.

  As stated, the ability of the Government to influence insurance pricing is limited, but that does not preclude the Government from introducing measures that may, in the longer term, lead to a better claims environment that would facilitate a reduction in claims costs. The Department of Finance has embarked on a review of the insurance sector which is being undertaken in consultation with the Central Bank of Ireland and other Departments and agencies. The objective of the review is to recommend measures to improve the functioning and regulation of the insurance sector. The review is being conducted on a phased basis, with the first phase reviewing issues in the motor insurance sector. As part of this first phase, the first meeting of officials from the Departments of Finance and Transport, Tourism and Sport took place on 7 January. Progress reports will be submitted to the Minister for Finance as the review progresses, with a final report expected within 12 months.

  In the event that a person is unable to obtain a quotation for motor insurance or considers that the premium proposed or the terms are so excessive that it amounts to a refusal to give him or her motor insurance, he or she should contact Insurance Ireland quoting the declined cases agreement. Under this agreement, the declined cases committee of Insurance Ireland deals with cases of difficulty in obtaining motor insurance.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh The people I mentioned who are being penalised by the insurance companies will not take much solace from the Minister of State's response. Does he agree that the Minister for Finance should haul in the insurance companies and raise these issues with them directly, as has been done, albeit belatedly, in the case of flooding?  Instead of waiting for a review that will take up to one year to complete while the companies will be allowed to make exorbitant profits on the backs of people who are hard pressed to pay their other bills, should the Minister for Finance not haul in these companies to advise them that it is not acceptable to penalise people with older cars and those on lower incomes just because their profits need to be bigger than they are? They should either change their practices or the Minister should use whatever measures, limited as they are, the Minister of State says he has to take them to task. If they will not regulate themselves and not play ball, the Government should show them that it will force them to be fair to all citizens who need to drive to work or attend courses or get through their daily lives.

Deputy Jimmy Deenihan: Information on Jimmy Deenihan Zoom on Jimmy Deenihan As I said, the ability of the Government to influence insurance pricing is limited, as insurance companies are required under European law to price in accordance with risk. Neither the Minister for Finance nor the Central Bank of Ireland has the power to direct insurance companies on the pricing or provision of insurance products. In that sense, obviously, the Minister is restricted in directing insurance companies on their policy on rates of insurance and so on. I will, however, certainly convey the Senator's concerns to the Minister, who, unfortunately, cannot be here this because he is in the Dáil for Question Time. I, again, thank the Senator for raising the matter which is very topical at this time.

  Sitting suspended at 11.15 a.m. and resumed at 11.30 a.m.

Order of Business

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins The Order of Business is No. 1, Criminal Law (Sexual Offences) Bill 2015 - Committee Stage (resumed), to be taken at 12.45 p.m.

Senator Mark Daly: Information on Mark Daly Zoom on Mark Daly All too often the system fails people and it often fails the most vulnerable and those who cannot speak up for themselves. When the system fails the citizens, it is the responsibility of the State to acknowledge that it has failed, give assistance and right the wrong perpetrated. In the case of Louise O'Keeffe the State failed the citizen. It failed to protect her when she was in national school and failed to give assistance and protection when the abuse became known. Instead of the State acknowledging its wrong and failure, Louise O'Keeffe had to take it to the High Court and the Supreme Court and eventually to the European Court of Human Rights which ruled against it.  Now, however, the State is taking the narrowest possible view of that ruling. Louise O'Keeffe said she had been asked to attend a meeting with the Government and this was, on her own interpretation, to give a veneer of activity masquerading as action. She has described the Government's current behaviour as deplorable. I am seeking an amendment to the Order of Business in order that the Minister for Education and Skills would attend the House to explain why the State is continuing to fail to assist those who have been wronged and who failed to get the protection they rightly deserved from the Government.

  I see from the Government's legislative programme which was announced yesterday that one of the Bills promised by the Minister for Finance in 2012 is not in it. It concerns the protection of the national anthem the copyright of which has expired. Given the historic significance of 2016, the national anthem should be protected from any inappropriate use. We will be publishing a copyright Bill to this end and I hope the Leader and the Deputy Leader will provide Government time to pass it. It would protect the anthem which is a national symbol and deserves to be protected. I hope the measure will attract cross-party support and that the Government will accept it.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Will the Senator clarify the amendment?

Senator Mark Daly: Information on Mark Daly Zoom on Mark Daly The amendment to the Order of Business asks the Minister for Education and Skills to come to the House to discuss the Louise O'Keeffe case, the Government's treatment of the European Court's ruling and its narrow interpretation of it.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I note the commencement of the Fines Act which is a significant development in terms of penal reform that occurred in recent days. This means that we will finally see an end to the automatic practice of imprisoning people for non-payment of fines. This is an issue on which we are all united in this House. There has been a general consensus that we need to end the practice whereby every year thousands of people are sent to prison. It is usually for very short periods of time but, nonetheless, it is a huge burden on those individuals and the prison system. We will now finally see an end to that system, with a much more streamlined and fairer criminal justice system emerging as a result. People will be given alternatives of paying fines by instalments, attachment of earnings or community service, rather than having to go to prison for non-payment of fines.

  The Minister for Justice and Equality, Deputy Frances Fitzgerald, made the announcement on foot of relevant IT systems being put in place by the Courts Service, as required to implement the Fines Act. I very much welcome that measure and know that other colleagues will join me in doing so. If time permits, I ask the Leader to arrange for a debate on penal reform. The Government's record on penal reform has been strong, although it may have been generally overlooked. We have seen important and humane initiatives such as the closure of St. Patrick's Institution for young offenders which we all welcomed before the Christmas recess. In addition, the ending of the process of slopping out in Mountjoy Prison and elsewhere has been proceeding quietly across the prison system, but with little public awareness of it. If time permits at some point during the lifetime of this Seanad, I would like us to have a debate on the progress made on the issue of penal reform, as well as on the other relevant steps that need to be taken. They include, in particular, the recommendations made in the report of the justice committee on penal reform which was published some years ago.

  I commend the child care initiative being taken by the Labour Party, including the announcement of a proposed policy to make child care more affordable for parents. It seeks to place a cap on the hourly rate which people pay for child care. Deputy Ciara Conway was on radio this morning talking about this matter which is also reported in today's newspapers. Child care is a major cost for so many parents, particularly in Dublin where we see crèches and after-school facilities charging high amounts. Clearly this is a real burden for working parents; therefore, I ask the Leader for a debate on the matter if time permits.

  I also wish to note the publication this week of Standing up for Working People, the Labour Party's plan for fairness and decency at work. One aspect of the plan covers the policy that those engaged in freelance work such as freelance journalists or actors should be entitled to engage in collective bargaining. I hope we will be able to address that matter in Private Members' time in the near future.

Senator Feargal Quinn: Information on Feargal Quinn Zoom on Feargal Quinn I wish to speak for one moment about Professor Frank Pantridge. He would have been 100 years old this year, but, unfortunately, he died in 2004. His contribution to cardiology continues in hospitals, sports clubs and public places and is immense because in 1965 he invented the defibrillator. It is something that has saved many people's lives who would otherwise have died. We debated a Bill on this matter two or three years ago and adjourned the debate when the Minister said he wanted to consider the Bill, yet nothing has happened since. Something must happen on this issue. I very much doubt that we will get a chance to debate it again in this Seanad, but we should certainly call on the Minister to do something about it. Professor Pantridge worked in the Royal Victoria Hospital, Belfast. Speaking about his invention on BBC Radio Ulster in 1998, he said he did not create the device for personal gain or prestige but simply to save lives. He added: "People were getting cardiac arrests in a situation where the heart stops. In the casualty department people were arriving dead, having died in the ambulance." He went on to say, "My objective was to have almost a pocket defibrillator, if that was possible." He went on to produce one. When we debated defibrillator legislation, the House was fully behind the Bill, but we adjourned the debate on it with one minute to go to give the Minister time to consider the costs. Nothing has happened since and we have not been able to achieve what we set out to do. Perhaps what we set out to achieve was a little too much. We said there should be a defibrillator in every building that had 100 people per day going through it, but that did not happen. It was suitable that the Leader was able to find time for statements on innovation and jobs yesterday evening, which was attended by the Minister of State, Deputy Damien English. However, could we ask the Minister to do something about the defibrillator legislation in order that its provisions could somehow be put into operation to save lives?

Senator Terry Brennan: Information on Terry Brennan Zoom on Terry Brennan I welcome yesterday's announcement by the Tánaiste and Minister for Social Protection, Deputy Joan Burton, that Mr. David Begg will be the new chairperson of the Pensions Authority. In this position, Mr. Begg will bring with him extensive expertise in trade union affairs, pensions and corporate governance. I wish him well in his forthcoming role.

  Last July I expressed my abhorrence and disdain at the treatment given to Clerys workers following the sudden closure of their department store. There is no doubt that their treatment was totally unacceptable, as many of my colleagues in this House agreed. Clerys had a loyal work force, many of whom had worked in excess of 40 years and gave their entire working lives to the company. Legal issues were totally disregarded by the management. The legal requirement for a consultation period of 30 days with employees was not implemented prior to the redundancies in the company. It is necessary to urgently amend sections of the Protection of Employment Act. As legislators, we must ensure issues such as those in Clerys are addressed with appropriate protective legislation. No doubt, we will encounter similar treatment of workers by other employers if we do not take immediate action. We must do something urgently.  I am calling for an urgent debate on this issue and for the Minister for Jobs, Enterprise and Innovation, Deputy Gerald Nash, who was in the House yesterday and recently issued a report to the Government on the sale and liquidation of Clerys, to debate this issue with Members in the Seanad as soon as possible.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett I welcome the political reforms announced by the Taoiseach on 5 January 2016 and circulated to us the next day by the Oireachtas Library and Research Service. The reforms include election of the Ceann Comhairle by a secret ballot, the proportional allocation of chairs of Oireachtas committees using the D'Hondt method and regular appearances by the Taoiseach before the working group of committee chairs. These reforms harmonise with the recommendations made by the Smaointe group of four leading political scientists, Prof. David Farrell, Dr. Eoin O' Malley, Dr. Theresa Reidy and Dr. Jane Suiter. This group is concerned about the guillotine motion which is also a concern of the Leader. The use of the guillotine motion was why the President had convened the Council of State to review legislation during the Christmas recess. The work of political reform is important and the reform initiatives are welcome. The observations of the four political scientists are also welcome.

  I note that Standard & Poor's rating agency has taken a dim view of the regulation of the insurance sector in Ireland. The Taoiseach was dealing with this matter also during the past week. I am concerned there is a possibility for €92 million of liability from the Setanta Insurance company, even though the company, as the Central Bank stated today, was prudentially regulated in Malta. How on earth a Maltese liability ended up here should be discussed in this House. We also have concerns about the insurance industry not rewarding areas where the OPW has installed flood defences. There is also the matter of the Quinn Insurance company bankruptcy. The insurance sector requires tighter regulation.

  There are also fears, as reported by Daniel McConnell, that we may be returning to the era of pro-cyclical budgets and concerns are being expressed by the European Union. It is very important to make it explicit that revenues from corporate tax which grew exceptionally quickly in the last quarter are sustainable increases and there is not a round of budget promises which would return the State into the financial difficulties which this Oireachtas was elected to correct.

Senator John Kelly: Information on John Kelly Zoom on John Kelly The BT Young Scientist awards were announced last week. Thousands of excellent projects were submitted by students. I went to see projects from my own local secondary school, St. Nathy's College, and it was fascinating to see the level of thinking among young children. I listened to a radio interview with a young person from County Longford who had submitted a project. He assessed the possibility of a link between prescription charges and the increased numbers of patients on trolleys in hospitals. It appears there is a direct link. People are not buying their medication and it results in pressure in emergency departments. This young student found that the number of patients on trolleys has increased by 112% directly because of prescription charges. Perhaps we should take on board some of these ideas and research by young people.

  I now turn to the Boundary Commission which is reviewing the boundary at Monksland in County Roscommon with a view to moving it into County Westmeath and thereby into Leinster. I believe the Boundary Commission seems to have a job for life. When I ran for the council elections in 2004, I ran in the Ballaghaderreen electoral area. When I ran in the general election in 2007, it was Roscommon-South Leitrim. When I ran in the council elections in 2009, it was Ballaghaderreen-Castlerea. When I ran in the general election in 2011, it was still Roscommon-South Leitrim. Now it is going to be changed to Roscommon-East Galway. Previously it was Roscommon-Longford, Roscommon-Mayo and so on. However, the boundaries have now changed again for the local elections. It is no longer Ballaghaderreen-Castlerea but Ballaghaderreen-Boyle. There seems to be a change by the Boundary Commission for every single election. My point is that people in County Roscommon will not tolerate, under any circumstances, the notion that an area of 30 sq. km. of land with 7,000 people would be taken into another province. It simply will not be tolerated. I ask the Leader to invite the Minister for the Environment, Community and Local Government, Deputy Alan Kelly, to the House to discuss the matter. It is an issue in four regions in the State, but there is no way that a land grab by other counties will be allowed by people in County Roscommon.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Ballaghaderreen will stay in Mayo for football.

Senator Ned O'Sullivan: Information on Ned O'Sullivan Zoom on Ned O'Sullivan There was a disturbing, if alarmist, article in the Irish Daily Mail last week about leaving certificate and junior certificate examination marking. When I was a teacher, I was involved in the marking of examination papers. At the time an examiner had to sign a document regarding confidentiality. It is possible I am now breaching that, but I hope Oireachtas protection will come into play. I have the utmost confidence in the marking system and the way in which the marking is administered by the Department. It is of real importance to young students who have given five years of study that their papers be examined dispassionately, accurately and professionally. However, there are always a few bad apples in every barrel which need weeding out. They can be difficult to identify and deal with. I ask the Leader to request that the Minister for Education and Skills, Deputy Jan O'Sullivan, extend the period of training for examiners. It is currently only two days in Athlone during which time they are to comprehend how the system works and how to put it into practice. This is not enough training, especially for new examiners. I understand it would incur some expense, but I believe it should be extended to at least one full week. This may cut down and minimise the mistakes made in the marking of examination papers. It would also identify possible weak links - in my experience, there are very few - in order that they could be spotted and eliminated from the system in time. That is my response to the article in the Irish Daily Mail.

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins I offer my full support to Senator John Kelly. While it might suit Galway to weaken Roscommon from a football perspective, we are certainly full square behind County Roscommon in its fight to hold on to the Monksland area. Taking the area into County Westmeath would impoverish County Roscommon and it would lose a significant rates base. It would have a major, detrimental impact on the county of Roscommon and the services there. The county can be assured that the Oireachtas representatives from County Galway strongly support County Roscommon in retaining the current county boundaries.

  With regard to Senator Trevor Ó Clochartaigh's Commencement matter this morning on the cost of car insurance for young drivers and those who drive older cars, I agree with many of the good points made by the Senator. The cost of insurance is causing hardship for many. However, the Senator knows there is a limit to what Government can do and it is precluded by EU rules from interfering in the insurance market. I am glad that the review of the insurance sector is being conducted by the Department of Finance, the Central Bank and other agencies. There are some steps the Government can take and I would like to see a serious analysis of why the cost of insurance has risen so dramatically for certain people in certain sectors. One of the reasons is that we all pay to cover the costs of significant claims of uninsured drivers.  I would like to see a Government tackling this issue head on. There are things that could be done. If somebody goes out on the road in an uninsured car, not only does he or she put the lives of others at risk but it penalises other drivers whose premiums will be hiked. That car should be confiscated and the person concerned should not be allowed back on the road for a significant period. There have been several high profile cases reported in the media this year of fraudulent claims. There is an opportunity for further significant savings in this area. I hope the review of the insurance sector by the Government and the Central Bank will bring about significant reductions in insurance premiums.

  I welcome the launch today of Ireland’s first national physical activity plan by the Ministers for Transport, Tourism and Sport and Health to increase by at least 50,000 every year the number of people taking exercise as a normal part of their daily lives. I welcome the support for community walking groups, the active school flag programme and building on initiatives to get Ireland swimming, cycling and running.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Is the Senator seeking a debate on the matter?

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins This is very significant. We heard a lot of talk yesterday about obesity. This is part of a plan to make us a much healthier nation.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh Tacaím leis an méid atá ráite ag an Seanadóir Ó Dálaigh maidir le cás Louise O'Keeffe agus leis an leasú atá molta aige. I second Senator Mark Daly’s proposal for a debate on the issues arising from the Louise O’Keeffe ruling.

  Some Senators have welcomed the appointment of Mr. David Begg to the Pensions Authority. I am not raising an issue about an individual, but I am concerned about the method by which the appointment was made. The Government promised us transparency and a new way of doing business. That the chairperson of the Pensions Authority has been appointed and the Public Appointments Service, PAS, has been circumvented in the dying days of the Government worries me. I hope the Leader will assure us that we will not see a raft of cronies appointed by Ministers to State boards, etc. in the dying days of the Government because they promised us this would not happen. It does not send a very good signal that the Tánaiste has done this. I do not see why it could not have been done through the PAS.

Senator Terry Brennan: Information on Terry Brennan Zoom on Terry Brennan Does the Senator think Mr. Begg is not qualified?

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh I am not raising an issue about the individual but the process of the appointment.

Senator Ned O'Sullivan: Information on Ned O'Sullivan Zoom on Ned O'Sullivan The man in question has been mentioned and is highly qualified.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh The issue is not about the individual but the method of appointment.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That is why we do not allow names to be bandied about on the Order of Business or in the House. Mr. Begg is not here to defend himself.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh I note that the Minister for Children and Youth Affairs is this morning facing questions before a United Nations committee on Ireland’s children's rights record. Senator Ivana Bacik has been talking about the Labour Party’s child care initiative, which I look forward to reading. The issues being raised today in Geneva, however, point to a failure by the Government to implement many of the promises it made five years ago. Issues to be raised in Geneva include non-Christian children accessing State-funded schools; inadequate resources for Garda vetting procedures for adults working with children; lack of a rights-based framework for children with disabilities; the continued failure of local authorities to provide adequate housing for Traveller children and their families; the failure to recognise Travellers as an ethnic minority and the continued holding of asylum-seeking children in direct provision centres, sometimes for their entire lives. There is also the issue that the Ombudsman cannot investigate issues relating to direct provision. Child poverty rates and the trauma experienced by children living in emergency accommodation, etc. will also be raised. The score card is not very strong for the Government. We have debated this issue regularly because there is a certain amount of expertise on it in this House, which deepens the debate. Although there are only a few more days of this Seanad left, if there is time in the programme I would welcome a debate on these issues. The Minister for Children and Youth Affairs might be willing to come into the House when he comes back from Geneva to discuss what was raised there. That debate could be one of great importance.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney The Irish Independent today quotes the Minister for Education and Skills, Deputy Jan O'Sullivan, as saying: "The State has never invested in childcare and, as the economy recovers, it is time to change that for once and for all." I have the height of respect for the Minister. She sat in this House and I was proud to be one of her colleagues, but is she living in the real world? I have been involved in child care for almost 20 years. From 1997 until Fianna Fáil left office in 2011, millions of euro, if not several billion, were invested in child care, specifically in a capital programme that resulted in the provision of superb facilities across the country. In my town of Drumshanbo we have a dedicated child care facility which looks after 120 children of all ages. Most of the people, sadly because of failed Government economic policies, benefit from a State subsidy given to those in receipt of social welfare. A significant proportion of the people accessing child care, particularly in rural Ireland, and in some urban parts, gain from Fianna Fáil initiatives dating back over 20 years in respect of child care.

  Although a large amount of money was given to provide for state-of-the-art facilities, of which people are proud, the high cost of providing child care remains a problem for those in what is called the “squeezed middle”. I have repeatedly raised this issue in the House, going back several years. It is a bit hollow and cynical that in its dying days the Government which has been in office for five years talks about considering child care costs. The Labour Party is engaging in more auction politics to attract votes from the “squeezed middle”. I am not in any way diminishing the financial difficulties faced by the middle classes, although I hate using such terms, those with incomes who find it increasingly difficult to make ends meet, not only because of child care costs but also mortgage costs and the cost of living. The figure of €25,000 is given as the annual cost of living in Dublin.

  The problem is one of rising child care costs and nothing has been done to address that issue. It diminishes the Government to suggest there has been no investment by the State in child care facilities. If that is its message, it will not gain votes because people, particularly in my county and town, know that excellent child care facilities have been provided and that those who are unable to pay, mainly those on social welfare, are able to access a State subsidy and that it does not cost them so much. This Labour Party initiative is a cynical exercise in trying to attract votes.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan I totally understand the Cathaoirleach’s desire to hold on to Ballaghdereen in County Mayo, from a football point of view, but we are all very concerned at this infringement by one county on another or by their aggrandisement. I, too, would like to hear from the Minister for the Environment, Community and Local Government, Deputy Alan Kelly, on this matter. The Leader has some experience of it between Waterford and Kilkenny. There are other proposals in other parts of the country. It is not desirable and it would be interesting to hear the Minister outline what rationale, if any, is behind it. Let our views be heard. There should be no final decisions by anybody on any of this.

Senator Paul Bradford: Information on Paul Bradford Zoom on Paul Bradford I concur with Senator Sean D. Barrett in his general welcome for the many proposals on Dáil reform being discussed and presumably decided on in the other House.  The process of political reform which is sought and accepted by the public is undermined by decisions such as the one raised by Senator Trevor Ó Clochartaigh, namely, the appointment to a significant post of responsibility of a person without going through the proper channels. We cannot dispute the credentials of the person appointed to the Pensions Authority. He played a key role in the broader partnership process, but a commitment was given to process State appointments and political appointments at all levels in a different fashion. Sadly, that has not happened. That undermines the concept of political reform and is a retrograde step in that regard.

  On the proposals being debated elsewhere, I note that one of them suggests the election of the Ceann Comhairle be by secret ballot. The question that will be asked in this House is whether the measure will spread to the election of the Cathaoirleach of the Seanad by secret ballot, but that is a debate for this House on another occasion.

  Political reform drips very slowly. I welcome the document produced yesterday - all documents produced add to the political reform mix - but point out that on 26 February 2002, not 2010 or 2008, the Oireachtas agreed to a series of political reform measures relating to the work of the Oireachtas, the work of committees, having a separate committee week, membership of committees and much more. Ten or 12 measures, including the introduction of electronic voting in the Dáil Chamber, which went ahead, were not just agreed to within the parties but were officially launched in a document and a press conference held under the chairmanship of the then Government Whip, Seamus Brennan, to announce that suite of political reform measures in 2002, which were agreed by all sides of the House. I recall it vividly because I was a member of the Whips committee at the time. All parties agreed to a significant degree of political reform within the House which would have transformed the way the House did its business. That was on 26 February 2002 and if the Leader wants to find the document, it is resting at peace in the Oireachtas Library. One of the problems we have is that great ideas are put forward by all sides of the House and on occasion are accepted, but they are then forgotten about. It is like the 1991 report on local government reform, the Barrington report, which was agreed to by every member of all parties on all sides of the Dáil and the Seanad, which is also resting at peace in the Oireachtas Library. When we come up with proposals and ideas, we must follow them through. As a former Member of the other House, I can say that if the 2002 proposals had been enacted, the work of that House - presumably, it would have drifted into this House also - would have been transformed in a progressive way. One of the suggestions was that there be a Member's hour each week whereby a backbench Member of the House would be allowed a full hour to raise subjects of his or her choice. Its purpose was to engage Members of the Oireachtas in genuine parliamentary debate and reform and it is disappointing that an agreed document launched 14 years ago remains on the shelf.

  In terms of what is happening in the other House on political reform, if we are to do something similar here, we should do more than debate it. We should initiate it because parties on all sides of the House but, more importantly, every citizen of the country, will benefit from political reform and turning the two Houses of the Oireachtas into genuine debating Chambers where ideas are brought forward, listened to with respect, regardless of who brings them forward, and, if appropriate, acted on. We need to have grown up politics in the future.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh Will the Leader arrange for the Minister for Foreign Affairs and Trade to come to the House? It has been reported that the Government is refusing to follow the lead of many other countries which have declared that the barbaric treatment and murder of Christians in the Middle East is tantamount to genocide. It would be sad if the Government was denying that this is the case and not supporting that call by many states. Calling it genocide means that the perpetrators will have to face the consequences of their actions in due course under international law; therefore, it would be highly desirable that we would have the Minister here to clarify the Government's position in that regard and whether these reports are accurate or inaccurate.

  I refer briefly to the Minister for Children and Youth Affairs who appeared before the Human Rights Committee of the United Nations, which is somewhat of a misnomer in terms of that committee, but let us call it by its official title, even if it does not live up to the name. He mentioned specifically children who grew up in households where parents were effectively precluded from paid work and said they would struggle to be included in mainstream society in any meaningful way. He said we knew that household joblessness could lead to the transmission of poverty from one generation to the next and referred to the consequences for children in this regard. He said a good social policy and a strong expression of children's rights gave every child the opportunity to realise his or her full potential. That is rhetoric but solid, tangible policy formulation and implementation is needed to achieve it. I refer to good social policy.

  My question, to which we might ask the Minister to come to the House to reply, is about the initiatives being planned by the Government to support the institution of marriage. We know from CSO statistics and much social research in other countries, apart from the small amount of research conducted here, that single mothers rearing children, in particular, are likely to suffer from the more extreme elements of poverty. They are not often in a position to work and, in general, they are very disadvantaged and not supported by the fathers of their children. That in itself is sufficient motivation for the Government to have a fairly proactive policy on ensuring the institution of marriage is promoted and encouraged in a way that will reduce the number of children born outside marriage where they are at much greater risk of living in poverty and being disadvantaged in the early formative stage of their lives, which subsequently has lifelong effects on them in terms of disadvantage when they grow up. I would like the Minister to come to the House to discuss that issue.

Senator Máiría Cahill: Information on Máiría Cahill Zoom on Máiría Cahill I record my support for Louise O'Keeffe regarding recent media interviews and how she has been treated by the State over successive years. She has demonstrated, not only on her own behalf but on behalf of other abuse victims, tenacity and a thirst for justice over many years. She took her initial complaint in 1997 and went to the High Court in 2004, the Supreme Court in 2006 and applied to the European Court of Human Rights in 2009. We have seen this case played out over the terms of three successive Fianna Fáil Governments and, subsequently, this Government. I have no difficulty with the Minister for Education and Skills, Deputy Jan O'Sullivan, coming to the House to explain, but I would prefer a much more detailed brief on where the State Claims Agency sits on this issue with reference to other cases. I understand the Minister has said she does not have all the available information to hand. Therefore, while I have sympathy for the amendment proposed to the Order of Business, I would much prefer to wait for the information from the State Claims Agency. Any abuse victim will say it is never about the money. It is not and should never be about the money in terms of recompense for very grave and difficult situations in which children were placed. However, every victim should be entitled to recognition for what he or she suffered and this is one way in which the Government could make redress to the victims concerned.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins On the point raised by Senators Máiría Cahill and Mark Daly about-----

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I am sorry for interrupting the Leader, but I omitted to second Senator Mark Daly's amendment. Please forgive me.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins On the question raised by Senators Máiría Cahill and Mark Daly, since taking office the Government has sought to provide appropriate redress for those who experienced abuse and mistreatment across the State. In 2012 it established a residential institutions statutory fund to provide housing, health services and educational support for those who had survived physical, emotional and sexual abuse in residential educational institutions. We also commissioned a report to examine what had happened in the Magdalen laundries and in 2013 put in place a compensation scheme and made available medical support for the women whose lives had been irreparably damaged. A redress scheme was also established for survivors of the barbaric symphysiotomy procedures. It is right that the Government has acted to right some of the wrongs of the past. It is even more important that we continue to act to prevent future generations of children from experiencing such abuse. That is why the Government called for the holding of a referendum to enshrine the rights of children in the Constitution which was comfortably passed by the people. It is also why the Government has placed the Children First guidelines on a statutory footing, with mandatory reporting of all child protection concerns. It is the reason legislation is passing through the other House to improve our approach to the vetting of those who have contact with children.

  The Senators are right in saying that in 2014 the European Court of Human Rights ruled in favour of Louise O'Keeffe and found that there had been a violation of Articles 3 and 13 of the convention. The court awarded her €30,000 in damages and €85,000 in expenses. The Government did not quibble with this judgment in any way but moved immediately to make the payment to Ms O'Keeffe and publish and disseminate the findings of the court. Both the Taoiseach and the Minister for Education and Skills, Deputy Jan O'Sullivan, immediately apologised to Ms O'Keeffe and the survivors of sexual abuse in schools for our collective failure to protect a generation of children from such appalling and degrading treatment. The Government also began an immediate examination of the general measures that might be required to meet the terms of the judgment and ensure the safety and protection of all children in the State. The commencement of the Children First Act has been part of its general response. The commencement of the vetting Act will, as I said, be another important step in this regard. The Children First interdepartmental implementation group has been specifically tasked with carrying out a detailed review of current and planned child protection mechanisms in the school system to assess the extent to which issues identified in the judgment have been addressed in the period since 1973.

  The judgment in the O'Keeffe case relates to cases in which there was a prior complaint about sexual abuse to the school authority and in which no effective action was taken and children subsequently suffered. There is, however, no strict interpretation of what constitutes a prior complaint. Claimants are not required to come up with specific proof. While the State must be satisfied that, on the balance of probabilities, there was a prior complaint, it does not insist on a strict evidential standard being met in assessing the material put forward by an applicant. An holistic approach in analysis has been taken and that is the basis on which the Government is offering an ex gratia payment to those who suffered historical sexual abuse. Under the approach agreed to by the Government, we have already reached settlements with six other individuals who experienced sexual abuse in school. Payments have been made to each of them.

  I know that Ms O'Keeffe disagrees with this approach to a compensation scheme and that her views are heartfelt and expressed only with a wish to advance the cases of those who suffered in school. The State, however, has a broader obligation. While we have to take the view that we have to right some of the wrongs of the past, we also have to protect the resources of the State for investment in the safety of the next generation of children. The Government is taking the proper approach and striking the right balance. Therefore, I do not propose to accept the amendment to the Order of Business proposed by Senator Mark Daly, although I have expressed a comprehensive view on the Government's stance on and approach to the matter. Rather than proposing an amendment to the Order of Business, the Senator might raise the matter for discussion in the Commencement debate if he is seeking further information on it. I am sure the Minister will come into the House to take that debate.

  Senator Ivana Bacik welcomed the commencement of the Fines Act, an issue we discussed previously. Rather than have people going to prison, there can now be an attachment of earnings order and other arrangements, which should be welcomed by all. The Senator also called for a debate on penal reform and rightly pointed out that we had seen very positive improvements under the Government in that regard. I do not think we will have time in the next few weeks, but we will try to see whether we can have a debate on the issue.

  The cost of child care was referred to by a number of Senators. Senator Paschal Mooney discussed the high cost involved for the squeezed middle and he is right. Although I agree with him that there has been significant State investment in facilities, I can assure him that I have no intention of having a debate in this House on any of the promises or proposals of any political party prior to an election.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I am sorry I was tempted.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins Senator Feargal Quinn spoke about the availability of defibrillators, a matter he has raised on several occasions. As he mentioned, even if it was over-ambitious, we should certainly do something about the issue. I will raise it again with the Minister for Health, as I have on several occasions, to see if we can come up with some concrete proposals to advance it. I firmly believe it should be advanced.

  Senator Terry Brennan welcomed the appointment of a gentleman to a new position, while Senators Trevor Ó Clochartaigh and Paul Bradford questioned the method by which he had been appointed.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh Deputy Ciara Conway did so, too.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins The matter has been raised by all Senators and people can view it in whichever way they wish.

  Senator Terry Brennan also spoke about the Clerys' workers and the Protection of Employment Act and suggested there might be a need for an amendment to it to protect workers' rights. My understanding is that another workplace relations Bill will be brought before us in the next week or two. I hope it will address some of the concerns outlined by the Senator.

  Senators Sean D. Barrett and Michael Mullins, among other Senators, raised concerns about the insurance industry. Senator Sean D. Barrett said there was a need for greater regulation, while Senator Michael Mullins spoke about the review of the industry which had been undertaken by the Government and the Central Bank and which had been welcomed. I note the points he made about the cost of insurance for young drivers. I think everybody agrees on the issue of uninsured drivers, which is driving up the cost of insurance. The Senator called for greater penalties in this regard. His suggestion that vehicles be confiscated straightaway should be acted on. I also note his points about the making of fraudulent claims.

  Senators John Kelly, Paul Coghlan and Michael Mullins addressed the issue of boundary changes. Although that is the last thing we should be debating at this point, I note the points made by Senator John Kelly and others.   Senator Ned O'Sullivan spoke about the marking of examination papers and the need for greater training for examiners and so on. His point is valid and I will bring it to the attention of the Minister for Education and Skills.

  Senator Michael Mullins welcomed the launch of the recently announced new physical activity plan.

  Senator Trevor Ó Clochartaigh raised the issue of children's rights, a matter which was also raised by Senator Jim Walsh. I will endeavour to have the Minister for Children and Youth Affairs come to the House before the upcoming general election to debate the issue.

  I have addressed the points raised by Senators Paschal Mooney and Paul Coghlan.

  Senators Paul Bradford and Sean D. Barrett raised the issue of political reform, although most of the reforms spoken about concerned the other House. While I welcome the proposed reforms, I do not propose to arrange a debate in this House on the reform of the other House. We have enough to do to organise our own affairs.

  Senator Jim Walsh referred to the murder of Christians in the Middle East, which is appalling. I suggest the Senator table the issue for discussion in the Commencement debate with the Minister for Foreign Affairs and Trade. On the issue of support for the institution of marriage, I can assure the Senator that the Government is very supportive of the institution of marriage.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I am far from assured.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins I hope I have addressed all of the matters raised and apologise if I have not done so. As I said, I do not propose to accept the amendment proposed to the Order of Business.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Senator Mark Daly has proposed an amendment to the Order of Business, "That a debate with the Minister for Education and Skills on the Government's interpretation of the ruling of the European Court of Human Right in the case of Louise O'Keeffe be taken today." Is the amendment being pressed?

Senator Mark Daly: Information on Mark Daly Zoom on Mark Daly I thank the Leader for his comprehensive reply on the action taken thus far, but in the light of Ms O'Keeffe's concerns about how other victims are being treated, I propose to press the amendment.

  Amendment put and declared lost.

Question put: "That the Order of Business be agreed to."

The Seanad divided: Tá, 24; Níl, 11.

Níl
Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana. Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D.
Information on Terry Brennan   Zoom on Terry Brennan   Brennan, Terry. Information on Paul Bradford   Zoom on Paul Bradford   Bradford, Paul.
Information on Colm Burke   Zoom on Colm Burke   Burke, Colm. Information on Mark Daly   Zoom on Mark Daly   Daly, Mark.
Information on Máiría Cahill   Zoom on Máiría Cahill   Cahill, Máiría. Information on James Heffernan   Zoom on James Heffernan   Heffernan, James.
Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul. Information on Marc MacSharry   Zoom on Marc MacSharry   MacSharry, Marc.
Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael. Information on Paschal Mooney   Zoom on Paschal Mooney   Mooney, Paschal.
Information on Martin Conway   Zoom on Martin Conway   Conway, Martin. Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian.
Information on Maurice Cummins   Zoom on Maurice Cummins   Cummins, Maurice. Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned.
Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim. Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim.
Information on Michael D'Arcy   Zoom on Michael D'Arcy   D'Arcy, Michael. Information on Mary M. White   Zoom on Mary M. White   White, Mary M.
Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen. Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid.
Information on Imelda Henry   Zoom on Imelda Henry   Henry, Imelda.  
Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit.  
Information on John Kelly   Zoom on John Kelly   Kelly, John.  
Information on Denis Landy   Zoom on Denis Landy   Landy, Denis.  
Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie.  
Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.  
Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.  
Information on Hildegarde Naughton   Zoom on Hildegarde Naughton   Naughton, Hildegarde.  
Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.  
Information on Mary Ann O'Brien   Zoom on Mary Ann O'Brien   O'Brien, Mary Ann.  
Information on Pat O'Neill   Zoom on Pat O'Neill   O'Neill, Pat.  
Information on Tom Sheahan   Zoom on Tom Sheahan   Sheahan, Tom.  
Information on Katherine Zappone   Zoom on Katherine Zappone   Zappone, Katherine.  


Tellers: Tá, Senators Paul Coghlan and Aideen Hayden; Níl, Senators Ned O'Sullivan and Diarmuid Wilson.

Question declared carried.

Criminal Law (Sexual Offences) Bill 2015: Committee Stage (Resumed)

Acting Chairman (Senator Paschal Mooney): Information on Paschal Mooney Zoom on Paschal Mooney We will now resume the Committee Stage debate on the Criminal Law (Sexual Offences) Bill 2015. I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald.

SECTION 39

  Question again proposed: "That section 39 stand part of the Bill."

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I apologise for interrupting, but when we adjourned the debate in December, I had indicated that I wanted to speak to section 39.

Acting Chairman (Senator Paschal Mooney): Information on Paschal Mooney Zoom on Paschal Mooney Go ahead.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I was taken by surprise by the speed of the Acting Chairman. I wish to briefly raise an issue on the offence created in section 39 of "exposure, sexual conduct of an offensive nature". I raised this previously with the Minister and her officials. I know that there is quite a long history to the relevant previous offence of indecent exposure and that there has been some litigation and constitutional judgments relating to the issue of vagueness of language concerning this type of offence.

  I wish to raise a concern which I have raised previously with the Minister and her officials with the wording of subsection (3) of section 39 which reads as follows, "A person who intentionally engages in offensive conduct of a sexual nature is guilty of an offence". That is still a very widely defined offence. Subsections (1) and (2) are very carefully framed. Subsection (1) very clearly concerns a very specific act, while subsection (2) concerns a person in a public place who engages in a series of specific acts. However, there is no such restriction about a public place in subsection (3) and I am concerned that "offensive conduct of a sexual nature" is too broad a term.

  Subsection (6) provides for a definition of "offensive conduct of a sexual nature" which is very welcome, especially as it is quite specifically drawn. However, I have a residual concern that saying that conduct which is likely "to cause fear, distress or alarm to any person who is, or might reasonably be expected to be, aware of any such behaviour" is still quite a subjective test. I know there is an objective element to it, but concerns have been raised with me by constituents about this. A homophobic person, for example, might raise the fact that he or she suffered "fear, distress or alarm" by the behaviour of a gay couple but that would not be the sort of behaviour that one would want to see covered by this offence. There is a concern that it might give room, credence or justification to homophobic complaints. That is the concern that has been expressed to me and I ask the Minister to reassure me on that issue. I know that changes have been made to the way this offence has been drafted and that there is an awareness of the need to ensure people will not be able to raise unjustified complaints about behaviour.

Minister for Justice and Equality (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank the Senator for her comments. Following a number of judgments in the High Court which struck out offences relating to public indecency and exposure, section 39 will replace section 18 of the Criminal Law (Amendment) Act 1935. It provides for new offences to address certain behaviours. They are very clearly spelled out in the section. We have taken extensive legal advice and have liaised with the Director of Public Prosecutions and others on this section. I am very strongly advised that these provisions set an objective standard as the test for offensive conduct, that is, conduct which may be reasonably considered offensive by many.

  Obviously, I take the point the Senator is making. She is concerned that defining offensive conduct of a sexual nature as behaviour which is likely to cause fear, distress or alarm to any person could lead to the criminalisation of behaviour which is not intended to offend. The Senator has given an example and I understand her concerns. However, I reassure her that the definition as currently drafted establishes an objective test of what might reasonably be considered offensive, having regard to all of the circumstances. I am strongly advised that conduct that is not offensive per se such as the Senator described in her example would not be captured by this offence. The strong legal advice I have is that the drafting is quite strong.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I thank the Minister for her response. It is helpful to state it is an objective test and has been designed to be such.

  Question put and agreed to.

  Sections 40 to 42, inclusive, agreed to.

  Amendment No. 46 not moved.

  Section 43 agreed to.

  Amendment No. 47 not moved.

  Section 44 agreed to.

NEW SECTION

Senator Katherine Zappone: Information on Katherine Zappone Zoom on Katherine Zappone I move amendment No. 48:

In page 32, after line 4, to insert the following:
“PART 8
Abuse of a position of dependence and trust

46. The Criminal Law (Sexual Offences) Act 1993 is amended by substituting the following for section 5:
“Offence of abuse of position of dependence and trust

5. (1) Any person who being in a position of dependence and trust—
(a) takes advantage of his or her position, or

(b) aids, abets, counsels or procures another person to take advantage of his or her position,

and—
(i) induces or seduces a person to have sexual intercourse with him or her, or

(ii) commits any other sexual offence involving a person,
shall be guilty of an offence of abuse of position of trust and shall be liable upon conviction on indictment to imprisonment for a term of not less than ten years.

(2) Where a person charged with an offence under this section can establish that, in respect of the sexual act which had been engaged in, no offence would have been committed had the consent of the victim been granted prior to the act, it shall in those circumstances be a defence for a person who is charged with an offence under this section to prove that—
(a) the victim consented to the sexual act which had been engaged in,

and

(b) that such consent was granted freely and in the absence of duress or coercion.
(3) In this section—
(a) ‘position of dependence and trust’ includes, but is not limited to, a

person who—
(i) provides care,

(ii) is responsible for welfare,

(iii) occupies a position of authority,

(iv) provides education, or

(v) provides support services including therapy or counselling, to the victim;
(b) ‘sexual offence’ includes—
(i) a sexual offence within the meaning of section 3 of the Sex Offenders Act 2001,

(ii) an offence under section 2, 3 or 4 of the Criminal Law (Rape) (Amendment) Act 1990,

(iii) an offence under section 6 or 7 of the Criminal Law (Sexual Offences) Act 1993,

(iv) an offence under section 4 or 5 of the Criminal Law (Human Trafficking) Act 2008, or

(v) any other offence of a sexual nature contained in any other enactment and which has been so prescribed in regulations made by the Minister for Justice and Equality under this section.
Consent

5A. (1) It is hereby declared that in relation to an offence that consists of or includes the doing of an act to a person without the consent of that person, the existence of consent in respect of that act shall be determined in accordance with this section.

(2) In determining the existence of consent, an agreement between the parties to engage in the specific act must be established.

(3) In determining the existence of an agreement between the parties to engage in the specific act—
(a) an examination of the communication between the parties immediately prior to the act shall be conducted, and

(b) each person must be shown at that time to have understood the nature of the act.
(4) An understanding of the nature of the act shall only require the person to understand the physical nature of the act and shall not require the person to understand possible physiological consequences of the act.

(5) (a) In determining whether a person has consented to engage in a sexual act, no higher standard of understanding shall apply to persons with disabilities than that which applies to persons without disabilities.
(b) In determining whether a person understood the nature of the act, the presence of a mental impairment shall not be a determinative factor.”.”.

This amendment proposes a new section in an effort to offer a repeal of section 5 of the 1993 Act and to replace it, effectively, with a Bill I put forward a year and a half ago. It is my understanding the Government is going to bring forward its own amendment in order to repeal and replace it, but we do not yet have that amendment. I understand it will be tabled on Report Stage, but this is my effort to influence it. In terms of the Bill I put forward, the Department's response was to publish a discussion paper and invite submissions. It then developed the scheme of a Bill and so forth. I wish to respond to a number of proposals contained in the Department's paper by way of offering a rationale for my amendment. I am doing this in order to be as helpful as possible and to try to influence the Minister's thinking in terms of the amendment she will bringing forward on Report Stage.

  Back in June 2014 the Minister spoke during the Second Stage debate on my Private Member's Bill. The amendment before us is effectively that Bill. When the Minister responded to that Bill, she accepted that we needed to repeal section 5 of the Criminal Law (Sexual Offences) Act 1993 and stated she had no difficulty with incorporating a number of the concepts in my Bill into her proposals to reform this aspect of law. As I have just said, following on from that commitment, the Minister's Department published a discussion paper in July 2014. That paper proposed the abolition of section 5 of the 1993 Act and its replacement with two new sexual offences. The first of these is a general offence of engaging in a sexual act with a vulnerable person, while the second is a specific offence of abuse of a position of trust or authority in respect of a vulnerable person.  The paper defined a vulnerable person as someone who "is suffering from a disorder of the mind, or (ii) has a disability which is of such a nature or degree as it (a) may cause the person to lack the necessary understanding to consent to sexual acts [in certain circumstances] or (b) may severely restrict the capacity of the person to guard himself or herself against serious exploitation by another person". That definition is very similar to that of a mentally impaired person which appears in the 1993 Act. Vulnerability is defined only in terms of the person's disability, which means that the individuals the proposed provisions seek to protect are almost identical to those covered by existing legislation. That poses a problem from a human rights perspective because it defines the vulnerability of victims in a way which discriminates against people with disabilities. That is one of my prime concerns and a key issue.

  To return to the proposals made in the paper, the general offence of engaging in a sexual act with a vulnerable person, set out in the paper, covers all sexual activity and includes an offence of inducing a vulnerable person to engage in a sexual act. From conversations with departmental officials, it appears that this is targeted at defendants without disabilities who engage in sexual activity with persons with disabilities. The presence of consent or a reasonable belief that there is consent is proposed here as a defence, as is a reasonable mistake on the part of the defendant as to whether the complainant was a vulnerable person. If the defendant raises the latter defence, the court will consider whether, in all the circumstances of the case, a reasonable person would have concluded that the person was not vulnerable. That is the first proposal put forward in the Department's paper.

  The second offence provided for in the paper is the abuse of a position of trust or authority in the case of a vulnerable person. This offence only applies to sexual acts which constitute rape or aggravated sexual assault and the defendant is defined as a person "who as part of their employment or as part of a contract for service supervises or provides treatment to a vulnerable person and that supervision or treatment directly relates to that person's vulnerabilities". In this case, the presence of consent is not a defence. However, a reasonable mistake as to whether the complainant was a vulnerable person is a defence. While this provision might, on the face of it, look similar to my proposed amendment, it is different in three important respects. First, it only covers rape and aggravated sexual assault, whereas my proposed amendment would cover all sexual offences. Second, the victim must meet the definition of a vulnerable person which is explicitly based on disability and, therefore, discriminatory and not inclusive. As I argued when I introduced my Bill, many people can be vulnerable to sexual violence, regardless of whether they happen to have disabilities. The presence of consent is not a defence to this offence, whereas it is to the offence I propose to introduce in the amendment. For these reasons, the amendment is preferable to the proposals the Minister has brought forward in the discussion paper. My approach is more inclusive and less stigmatising of people with disabilities.

  It is clear that the Department's approach was aimed at avoiding any situation in which a complainant would feel compelled to consent because of fear of an authority figure or a fear that the support provided by the defendant might be withdrawn if he or she were to refuse. However, if that is the case, a definition of consent which emphasised the importance of consent being freely and voluntarily given without threat or inducement would better address this particular concern. I provide such a definition of consent in the proposed amendment.

  The critiques I offer to the proposals which form the basis of my proposed amendment were presented to the Department of Justice and Equality by the Centre for Disability Law and Policy, the Connect People Network, the Inclusive Research Network and other organisations that involve self-advocates and people with disabilities. When the Department published the scheme of the Bill in 2014, it did not include a provision to replace section 5, a matter I understand the Minister will address on Report Stage. The scheme provided a definition of a vulnerable person for the purposes of providing for a new offence. The scheme states a vulnerable person is a person "who (i) is suffering from a disorder of the mind, whether as a result of mental illness or dementia, or (ii) has an intellectual disability, which is of such a nature or degree as to severely restrict the capacity of the person to guard himself or herself against serious exploitation or abuse." This definition equates vulnerability with specific disabilities and retains the approach that there should be a separate sexual offence where the complainant has one of these disabilities. I strongly urge the Minister to reconsider that approach in the light of submissions made by disabled people's organisations and their allies. We do not need or want separate legislation to address the issue of sexual violence against people with disabilities but want to ensure the general law on rape and sexual offences is applied equally to those who abuse and exploit people with disabilities.

  I will mention a few words from self-advocates from the Connect People Network on the issue about which I am speaking. It is critical that these changes are introduced before the end of term of the Government. They say: "We think the current law is unfair for many reasons ... The current law is ignorant and old fashioned. It is from a time when people didn't know better ... We can have sex like everybody else ... We should be allowed to do all the sexual things we want to do ... The law is taking our power away ... It is just not fair ... It is nobody's business what I do in my spare time ... Other people don't get questioned so why should we get our private life questioned." They continue in that fashion. I bring some of their words into this debate because if it does not change in the next few weeks, all of it will still stand for people with an intellectual disability who can be criminalised if they engage in sexual relations prior to getting married.

  I understand the Minister is anxious to avoid making provisions that make blanket assumptions about the decision-making powers of persons with intellectual or learning disabilities. I know that it has been difficult and that departmental officials have worked very hard on this issue to strike the appropriate balance between autonomy and protection. The purpose of my proposed amendment is to achieve the desired outcome of acknowledging the specific harm caused when disabled people are deliberately selected by the perpetrators of rape and sexual violence. Instead of developing separate sexual offences involving people with disabilities, it can be achieved by introducing provisions to provide for sentencing uplift or enhancement where crimes are motivated by bias or hatred of persons with disabilities or where disabled people are deliberately targeted for sexual violence on the basis of their perceived vulnerability. That approach is used in the case of a wide variety of criminal offences in the United Kingdom. It could be applied in Ireland and would send the correct message on how rape and sexual violence directed at people with disabilities and the members of other marginalised communities would be treated in the criminal justice system. It would do so without sending a stigmatising message to people with disabilities about their perceived ability to consent.

  I hope the Minister will seriously consider the proposed amendment for these reasons. It is my effort to respond to some of the arguments made by the Department.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I should have welcomed the Minister and wished her a happy new year. I also welcome the groups represented in the Visitors Gallery which have worked hard to secure the passage of this Bill, with all of the important provisions it contains. We are all very hopeful it will be enacted before the dissolution of the Dáil.

  I commend Senator Katherine Zappone for the important provisions proposed in amendment No. 48. They raise important issues concerning the statutory definition of consent in sexual offences. I have already communicated with the Minister's office on this issue and, as the Senator said, the Minister is likely to propose amendments on Report Stage.  We very much welcome this. The Senator outlined a very difficult and complex area, particularly when one considers statutory definitions of consent generally. The English Sexual Offences Act 2003 provides in section 74 for a statutory definition of the concept of consent that is very broad. In that, a person consents if he or she agrees by choice and has the freedom and capacity to make that choice. That very broad definition has been criticised for being too broad and allowing too much discretion to judges and jurors in its interpretation. Senator Katherine Zappone's provisions are much more detailed and clearly relate specifically to issues around abuse of positions of dependence and trust. In framing any amendment it is difficult to strike the balance between allowing a definition to be broad enough to encompass the idea of freedom and capacity which is so central to consent and yet be detailed enough in order that any discretion can be structured rather than too open to subjective interpretation by jurors. I appreciate that it is a difficult task to draft these amendments.

  I will briefly mention another amendment that I know Senator Jillian van Turnhout will put forward on Report Stage. It is an amendment to section 33. The last day we did not get an opportunity to discuss her amendments Nos. 35 and 43 to section 33 which concern third party disclosure. I know that we were all hopeful that we would conclude Committee Stage on 11 December last year and at that point Senator Jillian van Turnhout did not engage in any detailed discussion of the amendments. I know that we have now dealt with them, but on her behalf - she is engaged in business before the UN Committee on the Rights of the Child - I notify the House that she will put forward another amendment to section 33 on Report Stage concerning third party disclosure. She has probably contacted the Minister about it already. It will be an amendment to section 19A(17) of the 1992 Act, where the complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court. I thank the Acting Chairman for allowing me to raise the matter.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank Senators Katherine Zappone and Ivana Bacik for their contributions. It is obvious from their comments that there has been much discussion with the Department on the issue over a protracted period and I thank them and other Senators for putting forward their views. On foot of the responses to the discussion paper mentioned by the Senators, a number of concerns raised are being addressed in the amendments that I will bring forward on Report Stage. Bringing forward the amendments will give us the opportunity to discuss the issue again.

  On the question of consent, I have met Dr. Susan Leahy who completed her doctorate on the question of consent. It is very detailed work and my officials have been in touch with her also to discuss the issue. In some jurisdictions there are definitions that are elaborate, but we rely on case law. There is quite a debate on whether we should take that direction in terms of a definition. I am examining this issue very carefully as I do not want to undo some of the very good work that has already been done. At the same time, if a stronger definition is going to strengthen the opportunity to prosecute in cases of crime where it can be notoriously difficult to achieve prosecution, I will bring it about. The matter is being examined very carefully from the legal perspective.

  I cannot accept the Senator's amendments, but I should provide some context. The Government and I fully support the repeal of section 5 of the 1993 Act and necessary measures will be brought forward. We are fully committed to addressing the principles behind the Bill, as we have made clear. The fact that the necessary amendments have not been brought forward today - they would have had to have been in by 9 December last year - is entirely a reflection of the complexity of the issue. I have been considering the range of legal issues and we have been getting extensive legal advice on them. They are extremely complex from a criminal law perspective, as the Senator appreciates, notwithstanding the periods involved with our discussions.

  Section 5 of the 1993 Act is a very blunt instrument. It identifies a group of people by reference to mental handicap or mental illness and offers complete protection based on their ability to live an independent life or guard against serious exploitation. In particular, where the section refers to a person being "incapable" of living an independent life, it fails to recognise that a person who may need assistance with certain daily routines or tasks is nonetheless perfectly capable of making decisions about personal and sexual relationships and the wide protection offered by section 5 is, in this respect, unwarranted. I absolutely accept this. This is relevant given the Government's policy on supporting people to the greatest extent possible in living ordinary lives in ordinary places. By definition, this includes having relationships with other people, whether that is friendship or more. That duty sits alongside the duty to provide appropriate protection for those at greatest risk of exploitation. There are balances and we are trying to find a legal formulation to deal with that issue. For the first time we are seeking to introduce provisions into our criminal law that will protect only those who are unable to protect themselves, while ensuring the rights of everybody to engage in everyday relationships. The challenge is that criminal law cannot be vague and there must be clarity as to the nature of an offence. Where the law purports to offer special protection, those it protects must be identifiable; that is a very obvious statement but it has proven complex in many ways.

  As I have stated, we found the consultation process useful in hearing a wide range of views and proposals. There was not a clear consensus on the way forward. The time it has taken to bring forward these proposals reflects the consideration they have received. They are very close to finalisation. I have looked at them in detail. The final proposals will represent the very best solution available in criminal law for this issue.

  With regard to the amendments put forward today, the proposed new section substitutes a new offence of abuse of position of dependence and trust. The offence arises where a person, being in a position of dependence and trust, takes advantage of his or her position and induces or seduces a person to have sexual intercourse with him or her or commit any other sexual offence involving a person. The proposals do not deal with situations outside this category of offence of abuse of position of dependence and trust. For example, a person who may be vulnerable to exploitation and who is so exploited by a neighbour, for example, may not be afforded the protection of this provision. In other respects, the provision is quite wide, as it does not include any limitation on persons who may fall within the category of a victim of this offence.

  In terms of the defence of consent in subsection (2) of the proposal, consent must be granted freely and in the absence of duress or coercion. There is some concern as to whether this defence could be successfully relied on where a person in a position of dependence and trust taking advantage of that position would effectively groom a victim for the purpose of having sexual relations. Depending on the form of act or activity involved, it may not amount to duress or coercion. There is a continuum with which it is difficult to deal.

  In its report on sexual offences and the capacity to consent, the Law Reform Commission frames an offence on the basis of capacity to consent. The proposals being developed within the Department also contemplate the approach of capacity to consent.  I share, as does my Department, the Senator's commitment to uphold and promote the integrity and rights of all persons. I have made it clear that we are obviously not satisfied with section 5. We are preparing an amendment that addresses what she has outlined in the best possible way. It is very complex. The ongoing work is equally focused on that goal. Where persons are at a greater risk of exploitation or abuse, the law must offer appropriate protection as, I am sure, the Senator would agree.

  We are looking at several issues and finalising the amendments, including the definition of "vulnerable person" and the issues around consent. I am not in a position to accept the amendments today. We are working very closely with the Office of the Parliamentary Counsel on the final drafting and I hope we will make good progress in the coming days.

Senator Katherine Zappone: Information on Katherine Zappone Zoom on Katherine Zappone I thank the Minister and know that people with intellectual disabilities will also appreciate it. I acknowledge the complexity, as the Minister has outlined, and, therefore, I am happy to wait a little longer for what she will bring forward. I absolutely agree, of course, that section 5, as it stands, is a blunt instrument. I am grateful to hear what the Minister has said and know from my conversations with her and her officials that she is committed to the same principles that are behind my amendments. Hearing the different issues she raised is helpful in preparing my response to what she will bring next.

  We all have responsibility to ensure protection is provided for those who need it. We also need to look very carefully at the complex issue of capacity. The advocates for people with intellectual disability, in referring to the issues of protection and capacity, simply say many people with extra support needs can protect themselves and make up their own minds. We need to remember this as we deal with this part of the Bill.

  Given that we did not have the Committee Stage amendments in advance, I would appreciate it if the Minister could share the amendments she will table on Report Stage with me before we come here for discussion. That would be helpful in preparing my response.

  In the light of what the Minister has said, I will withdraw the amendment with the option of reintroducing it on Report Stage.

  Amendment, by leave, withdrawn.

TITLE

  Question proposed: "That the Title be the Title to the Bill."

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I just want to mention that we will be introducing amendments to the harassment order under section 40 to clarify that such orders will take effect as soon as the offender is notified.

  I take the opportunity to thank Members for their contributions today and on the previous occasion. As Senators are aware, it is a wide-ranging Bill addressing child protection, including emerging threats, support of victims and an update of existing law and reform of prostitution laws. I thank everyone for the broad support for the Bill to this point. Will be introducing a range of amendments on Report Stage.

  We need to come back on the definition of "image" in sections 6 and 8. Those are offences relating to the grooming of children and target those who seek to familiarise children with sexually explicit material. The term "image" arises as part of the definition of sexually explicit material. For the purposes of clarity, it is proposed to define the word and I will be introducing an appropriate amendment in that regard when I return to the House.

  Question put and agreed to.

  Bill reported with amendments.

Acting Chairman (Senator Paschal Mooney): Information on Paschal Mooney Zoom on Paschal Mooney When is it proposed to take Report Stage?

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik Next Tuesday.

  Report Stage ordered for Tuesday, 19 January 2016.

Acting Chairman (Senator Paschal Mooney): Information on Paschal Mooney Zoom on Paschal Mooney When is it proposed to sit again?

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik Next Tuesday at 2.30 p.m.

  The Seanad adjourned at 1.30 p.m. until 2.30 p.m. on Tuesday, 19 January 2016.


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