Ruling leaves no gaping hole in law, says McDowell

Seanad report: Minister for Justice Michael McDowell said it was planned to introduce emergency measures before this weekend to restore the protection of persons under 17 in terms of statutory prohibition of the offence of unlawful carnal knowledge.

It was proposed to meet the Supreme Court's concerns about the 1935 Act on admitting arguments of mistaken belief about the age of victims. He had been contacted last week by the Ombudsman for Children who had argued against a change in the law.

The Supreme Court's striking down of Section 1 (1) of the 1935 Act had not left a gaping hole in our laws, he said. Our criminal code still provided for residual offences against young persons. The crime of rape carried a life sentence and sexual assault could be visited with a maximum penalty of 14 years.

Mr McDowell said it was falsehood to suggest the Government could have brought in emergency legislation to prevent sex offenders affected by the Supreme Court decision being released.

He said neither he nor his senior officials had known until recently about the matter before the Supreme Court.

An official of his department had contacted the chief State solicitor's office about the proceedings and was told nothing was required of the department at that time and that the department would be kept up to date as things developed.

"Unfortunately, nothing seemed to happen, and the department was unaware of subsequent developments including, I have to say, the victory in the High Court, let alone what happened in the Supreme Court. I have to tell the House that there was no communication with the department from December 2002 until last Tuesday morning on this matter, and that is something which I am going to look into because I think it is important that the department have its radar screen."

Demanding that a special debate be held on the outcome of the Supreme Court decision on the law relating to under-age sex, Brian Hayes, Fine Gael leader in the House, said that in view of Mr McDowell's service as Minister and attorney general, he found it difficult "and extraordinary in the extreme" to believe he had been unaware of this case pending the court hearing.

"I do think the Minister for Justice has very significant questions to answer in relation to the Government's handling of this case."

In his own personification, Mr McDowell was the great "I am" of Irish politics. It was now time for him to be frank with the Oireachtas.

Maurice Hayes (Ind) said it was important they seek to protect children. An informed debate might be helpful in which members tried to reassure the public that by and large, children were not in greater danger today and that people were not waiting to harm every 15-year-old. "While it is important that the law is in place, I am unsure that predators, rapists and people like that go around with a copy of the Constitution or the criminal law in their pockets."

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John Dardis (PD), acting leader of the House, shared the distaste voiced by Michael Finucane (FG) over the payment of a €32,000 bonus to the Health Services Executive chief executive.

Mr Finucane said that despite a stated policy of keeping elderly people in their own communities, he knew of an 85-year-old man in Limerick who was debarred from getting even an hour of home help because he had two pensions. "I don't accept that a person deserves a bonus of €32,000 when I see that poor man out there."

It had been reported that the Taoiseach was spending €500 a week on make-up.

"Let's cop ourselves on and let's look at the reality of what's happening in rural Ireland," added Mr Finucane.

Mr Dardis said he made no bones about sharing Mr Finucane's distaste on this matter.

It was up to the health board to decide, on the basis of contract, whether to award such bonuses. But he did believe that in the context of what Senator Finucane had described, it was very difficult to take.