Political edge was added by blaming the Minister writes Stephen Collins.
Minister for Justice Michael McDowell seemed taken aback in the Dáil yesterday when Labour leader Pat Rabbitte put it to him that it was no longer an offence to solicit a minor.
Rabbitte claimed that the offence of soliciting or importuning a child for sex contained in the Children Act, 2001, had been repealed in emergency legislation rushed through the Oireachtas last summer to deal with the statutory rape crisis.
What gave a real political edge to the Labour leader's intervention was the claim that it was all McDowell's fault.
The Labour charge is that the Minister failed to include the old provision in the emergency legislation which was devised in haste to deal with the situation created by the decision of the Supreme Court to allow the defence of "honest mistake" in statutory rape cases.
McDowell didn't have a clear answer for Rabbitte, saying: "This is the first time the issue has been raised with me." He added, though, that whatever about the issue raised by the Labour leader, the Garda still had a legislative basis to continue with its inquiry into an alleged paedophile ring in north Dublin.
It is this inquiry that has given a real edge to the political controversy. The Government took a huge and unexpected hit last June when the statutory rape issue burst on to the political scene. The controversy followed the decision of the Supreme Court to allow a defence of honest mistake in cases involving statutory rape.
That issue had the Government at sixes and sevens for weeks and Ministers did not regain their composure until the summer recess. McDowell rushed emergency legislation through the Dáil and Seanad last June to close off the loophole exposed by the Supreme Court. The establishment of an all-party Oireachtas committee to examine the issue and recommend whether constitutional change was required also helped to calm political nerves.
It is against that background that Rabbitte's Dáil intervention yesterday sent a shiver down the spine of Government TDs. The Minister's careful response fuelled the apprehension that the Labour leader could have lobbed another political grenade in the Government's direction.
Clearly aware of the danger, McDowell moved quickly after the Dáil exchanges to reassure the public that emergency legislation would be introduced if required.
However, although Rabbitte appears to have been right that the provision was inadvertently discarded, it does not appear significant enough to do political damage to the Government on anything like the scale of last summer.
The Labour case is that until last summer, soliciting or importuning children for sexual purposes was an offence under section 250 of the Children Act, 2001. Party justice spokesman Brendan Howlin said the offence was committed if a child was approached with the intention of committing certain sexual offences - and it was committed without there being any need to prove that a sexual act was committed or attempted.
He accepted, however, it still remained the case that a sexual act with a child was unlawful and that attempting such an act was also an offence. He also pointed out that "aiding, abetting, counselling or procuring" the commission of such an act by another person was also an offence. "But, in what can only be called an astonishing oversight, the law relating to soliciting and importuning children for sexual purposes was effectively abolished by Minister McDowell's Criminal Law (Sexual Offences) Act of last summer," said Howlin.
"It was effectively abolished because the section of the Children Act that prohibited soliciting and importuning was framed by reference to specific sexual offences against children. But those specific sexual offences were repealed by the 2006 Act and replaced by new offences. The end result is that section 250 of the Children Act, 2001, now has no effect or meaning." This is a neat legal point but its political implications do not appear to be all that damaging. The Minister pointed out in a statement last night that the provision in question was a minor offence triable only in the District Court and one for which there is no power of detention for questioning.
He said there was a range of offences in the Child Trafficking and Pornography Act 1998 which made it a serious offence for any person to organise or knowingly facilitate the use of a child for the purpose of sexual exploitation, including "inducing or coercing the child to participate in any sexual activity which is an offence under any enactment".