Header Item Prelude
 Header Item Business of Seanad
 Header Item Order of Business
 Header Item An Bille um an Aonú Leasú is Tríocha ar an mBunreacht (Leanaí) 2012: Céim an Choiste
 Header Item Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage
 Header Item Business of Seanad
 Header Item Radical Seanad Reform Through Legislative Change: Statements
 Header Item An Bille um an Aonú Leasú is Tríocha ar an mBunreacht (Leanaí) 2012: Céim an Choiste (Atógáil) agus na Céimeanna a bheidh Fágtha
 Header Item Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage (Resumed) and Remaining Stages
 Header Item Ráiteas faoi Eolas do Vótálaithe: Tairiscint
 Header Item Statement for the Information of Voters: Motion
 Header Item Adjournment Matters
 Header Item Schools Amalgamation
 Header Item University Status Applications
 Header Item Noxious Weeds
 Header Item Bus Services

Wednesday, 3 October 2012

Seanad Éireann Debate
Vol. 217 No. 7

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Chuaigh an Cathaoirleach i gceannas ar 10:30:00

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 David Cullinane that, on the motion for the Adjournment of the House today, he proposes to raise the following matter:

The need for the Minister for Education and Skills to discuss the report commissioned by the Higher Education Authority on the future of third level education in the State, its conclusions and the proposals regarding a national technological university with a campus in both Dublin and Waterford.

I have also received notice from Senator Martin Conway of the following matter:

The need for the Minster for Education and Skills to outline when he plans to build a community school in Ennistymon, County Clare to replace the three existing second level schools.

I have also received notice from Senator Mary Ann O'Brien of the following matter:

The need for the Minister for Agriculture, Food and the Marine to outline the provisions in place to prevent and control the growth of ragwort; and whether further measures are required, given the high prevalence of the weed this year, owing to the threat it poses to livestock.

I have also received notice from Senator Paschal Mooney of the following matter:

The need for the Minister for Transport, Tourism and Sport to investigate the reasons Bus Éireann is limiting access to the public on its national Expressway routes.

I regard the matters raised by the Senators as suitable for discussion on the Adjournment and they will be taken at the conclusion of business.

Order of Business

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins The Order of Business is No. 1, Thirty-First Amendment of the Constitution (Children) Bill 2012 - Committee Stage, to be taken at the conclusion of the Order of Business and conclude not later than 2.45 p.m. - Report Stage will be taken at 5.30 p.m. and conclude not later than 7.30 p.m.; No. 2, statements on the consultation paper, Radical Seanad Reform Through Legislative Change, to be taken at 3.30 p.m. and conclude not later than 5.30 p.m., with the contributions of all Senators not to exceed six minutes; and No. 3, motion regarding the statement for the information of voters on the referendum on children's rights, to be taken at the conclusion of the final Stage of No. 1.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne This morning I note the absence of many of the Labour Party Senators. Two are present - one has just arrived. The Deputy Leader is present. I wonder whether it has to do-----

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik I notice there are four Fianna Fáil Members present.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne What happened this morning is that we have put it up to the Government to provide a quorum in this House. For eight minutes it looked like the Government was not in a position to provide a quorum and the Fianna Fáil Party and the Sinn Féin Party Members came into the Chamber at that stage to allow the Seanad conduct its business for the day. It speaks volumes about what we read in the newspapers today.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik That is nonsense.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne It speaks volumes about the choice the Labour Party in particular made between the Minister for Health, Deputy Reilly, and the former Minister of State, Deputy Shortall, in recent weeks. It also speaks volumes about the choices the Government, in particular the Labour Party, is making on health care. Serious questions have been raised as to whether the Minister for Health should have been involved in the Balbriggan decision. No one is questioning the right of a citizen to support a Minister, Deputy or other politician. That happens all over the country, but one must ask the question of whether a Minister in return or in any other fashion has made a decision which could be of benefit to a supporter. That is a fundamental question that must be raised. We have not got clarity from the Minister as to how a decision was made to put Swords and in particular Balbriggan, onto a list of primary health care centres. The former Minister of State, whom the Deputy Leader fully backed last week in this Chamber – she was right to do so – has raised serious questions about that process. She has said that answers have not been given by the Minister. The Minister for Social Protection, Deputy Joan Burton, has said further clarification must be given. The Minister for Transport, Tourism and Sport, Deputy Varadkar, stated the affair looked like stroke politics. The Minister of State, Deputy Creighton, suggested in the weekend newspapers that questions needed to be answered by the Minister, Deputy Reilly, on the decision.

  We, as an Opposition, are asking the Government today to send the Minister of State, Deputy Alex White, to the House. I propose an amendment to the Order of Business that the Minister of State who has responsibility for primary care be brought to the House to explain the criteria for the selection of the 15 extra sites, in particular Swords and Balbriggan. If the Government side votes against that, it is voting against the Minister for Social Protection, Deputy Burton; the former Minister of State, Deputy Shortall; the Minister of State, Deputy Creighton; the Minister for Transport, Tourism and Sport, Deputy Varadkar, and all the voices who are raising concerns about the decision, apart from the Opposition parties. They would be going against their own members.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins That is rubbish.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan That is not true.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne That should be borne in mind because it raises the most fundamental questions as to what happened in Balbriggan. It gives some answers to what the former Minister of State, Deputy Shortall, was referring to in media interviews at the weekend and what sources close to her were revealing to the newspapers. Too much has gone on. Too much has been said and not said on the matter and we must have clear answers as to how the decisions were taken. We will not accept in particular from the Labour Party, the sort of guff that has come from the Government in the past week. The former Minister of State rode roughshod through that guff, as did the Ministers, Deputies Burton and Varadkar, and the Minister of State, Deputy Creighton. They do not believe it and neither do we. We need an explanation and the Minister of State, Deputy Alex White, is best placed to give the explanation. One presumes that on his appointment yesterday he went straight into the Department and found out what exactly happened. He should tell the Seanad today.

  Another issue I wish to raise relates to consumer confidence, which was at a very high rate on the KCB survey in recent years in August. It shot down completely at the end of this month. That is an unfortunate and worrying situation. The reason given by all commentators is the fear of the budget and the kite flying that is going on by various Ministers. The Taoiseach, Deputy Kenny, asked his Ministers to take down their kites but they keep putting them up. My colleague, Senator Darragh O’Brien, raised the latest one yesterday, namely child benefit. It is frightening people all over the country. People are wondering whether they will be able to continue to pay for their children to go to crèches next year and perhaps they are pulling out already. Their confidence is shot and the upshot of it is that confidence in the domestic economy is shot because of the kite flying of Ministers. I appeal to them to take down their kites and to carry out a proper, serious budgetary process. They should not put the frighteners on the public because it is putting the frighteners on the economy.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik It is interesting to hear Senator Byrne speak about guff since he is a master of the art of guff. I have made my comment on the record last week in this House on former Minister of State, Róisín Shortall. I stand over that. A number of other Labour Party Senators made comments in this House also. It is interesting that Senator Byrne chose to single out the Labour Party as if this was a single party Government, which clearly it is not. There are two parties in government. Fine Gael is the majority partner in the Government and it is a coalition that is working well. Clearly, Fianna Fáil sees the Labour Party as the real challenge, perhaps because the Labour Party took so many of Fianna Fáil’s votes in the previous election.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne Borrowed.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik To hear the Senator singling out the Labour Party for a particular attack is ironic.

Senator Denis O'Donovan: Information on Denis O'Donovan Zoom on Denis O'Donovan One more member of the Labour Party is overboard. That is the trouble.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik It is very hard to take an attack such as that from Senator Byrne.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane Fianna Fáil tabled a motion of no confidence in the Minister for Health.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik In terms of Senator Byrne’s request to have the Minister of State, Deputy Alex White, come to the House, I am sure the Leader will deal with it. I hope we will see the Minister of State in the House. We should all welcome him and his appointment, in particular as he has a distinguished record in this House as leader of the Labour Party group in the previous Seanad term prior to February 2011.

  I wish to raise two matters; first, on the children’s referendum Bill, I am delighted to see that we will have time today for Committee and Report Stages. We had a very good Second Stage debate on the Bill. I hope we will have a broad debate after the referendum on children’s rights. There has been broad support for the wording of the referendum but there has been some critique, notably from Vincent Browne. I suggested last night in the Seanad that his reading of the Baby Ann case was wrong. I am delighted to see that in today’s The Irish Times he has accepted that his reading was wrong, that he had referred to only one judgment rather than to both judgments in the case, which clearly outlined the reluctance and regret some of the judges felt in coming to the decision to which they came and that the referendum will deal with the decision in that case and will allow clearer criteria for judges in dealing with such cases in the future.

  In the context of a broader debate on children’s rights we might also examine children’s allowance. There has been much debate about that. Personally, I believe in the principle of universality. I note Fergus Finlay from Barnardos said he would favour a reduction in the overall amount and to keep the universal principle in place. It is also worth noting the powerful defence of the universal payment of child benefit made by Evelyn Mahon, again in today’s The Irish Times where she spoke of the way in which children’s allowance has been constructed to deal with varied claims of mothers. She reminds us that it was only as recently as the 1970s that mothers won the right to claim child benefit of behalf of their children. It is a payment for children. Perhaps that is the key point; it is a payment in respect of each child and it is for that reason we should defend the principle of universality. We have had debates on the principle previously and I look forward to future debates on it as well.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett In today’s Irish Independent it is pointed out that in the first nine months of the year taxation rose from €26.1 billion to €28.5 billion. I make that a rise of approximately 9.2%. At the same time current Government expenditure rose by €125 million. Those numbers are extremely serious in the context of the Leader organising pre-budget debates.  It means the entire burden of adjusting the public finances is being borne by taxpayers and that nothing has happened on the expenditure side. The rest of the media would make one think there were daily reductions in public expenditures but the fact is the burden is being borne entirely by the taxpayer. That gives the consumer the gloom Senator Byrne just mentioned.

  Nine months is about half the term of office of the current Government. We need to discuss the balance of continuing to increase taxes, depressing the market economy, consumer spending, and losing jobs in wholesaling and retailing, or addressing some of the public expenditure issues. Will the Leader ensure our budget debate is balanced around this issue, rather than what looks like a very one-sided approach, as far as taxpayers have heretofore been concerned?

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane I refer to the issue of having a serious debate in the Seanad. If we are to do the country a service we should draw attention to some facts rather than give criticisms and negative points - not about the Government but about the country in general. Every time a politician stands up people listen on an economic level. I congratulate Senator Barrett who always brings facts and figures to the Seanad. This should happen whenever there is positive news in the country, when the Exchequer publishes figures that should be repeated, rather than noting every figure the Government or anybody else puts out. The Exchequer figures published only yesterday by the Department of Finance, show the tax take for the first nine months to be €26 billion. In the period January to September more was paid in taxes and VAT than was expected. That is a good news story for this country and is one to give to the troika. It shows that the current year figures are performing ahead of target. Corporation tax intake was 11% higher than originally specified - also a good news story. That is what we should speak about for the sake of the country. We want to tell companies to come to this country. The corporation tax is good for the country and every other country in Europe is fighting against us. Let us stand up for ourselves and say we are a good country.

  I refer to the criticism of the Department of Health. We have heard this time and again. I heard it when I was a member of a different party and I took it then. I will take it now, too, but much of it is far-fetched. When I was a councillor in Rathfarnham I went to business people and to the Holy Ghost Fathers and asked them if they had a site for a primary care centre. I asked myself who else would do this if politicians did not. Business people are intent on making money - how can we help them? We will turn business people off for life from helping anybody to build a primary care centre. I got a site in Rathfarnham and am delighted to say there will be a primary care centre there although I do not know whether it will be on the Augustinian site, a certain business man's site or a third site. There are three sites and I do not know which will be the one but, by hell, I was going to go out and ask where such sites were. I say to every politician to go out and look for sites.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Does the Senator have a question for the Leader?

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane Yes, I have.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen Let us have a transparent system of selection.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane Put out all politicians to look for sites for primary care centres. The Cathaoirleach must let me put my question. There are three ways involved - direct provision, lease, or public private partnership. The more sites we ask for the better chance there is for getting a site on the ground. I will have to leave my question until tomorrow. I was going to ask about the banks but when I heard this criticism I could not let it pass.

Senator Denis O'Donovan: Information on Denis O'Donovan Zoom on Denis O'Donovan I second the motion proposed by Senator Byrne. Will the Leader ask for a debate on fish farming? The relevant Minister attended the Seanad some months ago. I do not ask that he come today but perhaps he might come before the Christmas recess to discuss this issue, with particular regard to salmon farming, about which I am deeply concerned. There is a current application for a salmon farm in Bantry Bay and other applications for off the Connemara coast and the Aran islands. There is a well articulated and perhaps accurate group of people who are objecting to the whole system of fish farming as it exists in Ireland. They quote statistics from Norway, etc. If the figures they publish are correct - I am not in a position to say, not being a scientist - the whole industry of salmon farming in Ireland, which employs many people and of which we are very proud, with Bord Bia and BIM promoting and lauding Irish salmon, both smoked and fresh, throughout Europe, there is a huge concern about the legitimacy and propriety of certain actions taken in the farming of salmon.

  This issue is of great concern to me, leaving aside the rights and wrongs of the particular salmon farm I mentioned. The group introduces issues that are of such concern I would be afraid to eat any farmed salmon. Of all the salmon we eat in this country, in the restaurant in this House or in any other, some 98% is farmed because the catching of wild salmon was outlawed. This is of enormous concern. When the Minister came to the House some months ago, he indicated he had well advanced plans for the biggest salmon farm in Ireland off the Aran Islands. I found that to be both interesting and encouraging but if what is being promulgated by the group I mentioned, which I reiterate is very well organised and articulate, with some of its members former fishermen, is correct it poses a huge question for the salmon farming industry in this country. I would like the Minister to attend and make a statement, clarifying one way or another which direction he and the Government plan to go.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I register my surprise and dismay at the vitriolic attack of Senator Byrne. When I compare the contribution of the Senator to that of Senator O'Donovan, who brought up a very serious issue of national interest, I am shocked.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Does the Senator have a question for the Leader?

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden Senator Byrne believes this House suffers from national amnesia, or something like that, and that we do not know why we are in this situation. We do. It is not to do with the Labour Party and the Fine Gael Party, for that matter.

  I agree with my colleague Senator Bacik in that I, too, believe in universal benefits. I am happy to acknowledge there are differences between the Labour Party or the Fine Gael Party. For the sake of argument, I believe in higher taxation and fewer cuts to public expenditure but I know some of my Fine Gael colleagues have different opinions. That is called democracy. We are in a coalition Government, in case the Senator has not noticed. The Labour Party has put its hand up and said it is prepared to compromise, unlike some other parties in previous Governments that drove this country into the place it is today.

  I do have a question for the Leader. I do not know if colleagues have noticed there are signs of hope recently in the construction industry and the property market. House prices are beginning to bottom out and are even showing indications of rising. Moreover, the CSO recently pointed out that many older Irish "children" find themselves back at home living with Mammy, not because she makes the best dinner in town or does the washing but because they cannot afford to live anywhere else. We have increased demand, therefore, but there is no banking sector interested in lending money to people in this country. I remind the Leader, yet again, that we need to have a robust debate on the future of the banking sector.

Senator Feargal Quinn: Information on Feargal Quinn Zoom on Feargal Quinn I express my appreciation to the Leader for making time today for the debate on the consultation paper, Open It, Don't Close It. It will be a very useful debate and I hope it receives good attention.

  Will the Leader consider finding time for a debate on the timber industry? The Government intends to sell off 85% of our timber in the coming 50 years, according to the figure I was given. I had not realised the benefits we have in fossil fuel timber for heat and energy. There is a good deal to be learned about this. I assumed that burning timber was the wrong way to go but apparently it is the correct thing to do. We have a considerable opportunity here but have not been using it. I realise the Minister may be able to touch on this when he attends tomorrow but it deserves a much wider and longer debate. I would welcome the chance to debate the whole issue of using timber for fuel in the years ahead.   We should hold our heads high with pride because Dublin has the lowest number of road traffic accidents of all the capital cities of the EU. Information in this regard has just been published. We have been successful in respect of this matter and I note that we do not often draw attention to the successes we enjoy. The fact that we have managed to reduce, to a considerable extent, the number of road traffic accidents which occur in the city does not mean that we can afford to relax our efforts in any way. The Road Safety Authority, which does not necessarily always receive recognition for its work, has done a massive job in respect of this matter in recent times. We should be proud of what has been achieved. We must also recognise that there are things we do well.

  I stated earlier that I visited Greece a few months ago. The airport workers went on strike on the Sunday after I arrived and then on the following Monday, Tuesday and Wednesday, taxi drivers, bus drivers and rail workers, respectively, also went on strike. In that country the belief is that they can solve the problem by stopping work. It may have been when the Special Olympics were held in this country that people were urged to give of their time for a day free of charge. Is there a possibility that we might restart the campaign in this regard? This might prompt people in Ireland - instead of stopping work - to make a decision to work for free for a day. I accept that they would not all be obliged to do this on the same day but rather could do it over a period. If we decided to do as I suggest, it would send out a message to other countries to the effect that Ireland is seeking to deal with the challenges its faces in a different way.

Senator Michael Comiskey: Information on Michael Comiskey Zoom on Michael Comiskey I wish to raise with the Leader the issue relating to the appointment of a new director at the National Office for Suicide Prevention. I am not sure of the facts but I understand that this position was previously filled and then vacated and that the person subsequently appointed to it did not take up the offer. It is important that this matter be dealt with. I was not present for the relevant debate last week when the issue of suicide was raised. I take the opportunity to offer my condolences to the Pugsley family in Dromahair and to the family of Eugene Gillespie from Sligo who also died in tragic circumstances. I also offer condolences to the family of Larry Cunningham who was buried yesterday and who was the man responsible for putting Leitrim on the map back in the 1960s.

Senator Denis O'Donovan: Information on Denis O'Donovan Zoom on Denis O'Donovan Lovely Leitrim.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane I support the amendment that has been proposed to the Order of Business. I take the opportunity to inform Senator Hayden that everyone in the House accepts that we have a new coalition Government. However, that Government also promised us new politics. Unfortunately, the latter have not materialised. The former Minister of State at the Department of Health, Deputy Shortall, described the actions of the Minister, Deputy Reilly, in adding two centres in his constituency to the list of primary health care centres as stroke politics.

Senator John Gilroy: Information on John Gilroy Zoom on John Gilroy The same crowd slated the former Minister of State a week ago but they love her now. That is great.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Senator Cullinane to continue, without interruption.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane This morning it has been revealed that a supporter of the Minister, Deputy Reilly, owns the site on which the centre in Balbriggan is to be built. The former Minister of State, Deputy Shortall, who was given responsibility for drawing up the criteria to establish the locations where the various primary health care facilities would be built, resigned on a point of principle as a result of the way in which the senior Minister engaged in what obviously amounts to stroke politics. This matter goes to the very heart of that for which the Labour Party claims to stand. If it genuinely stands for the delivery of health care based on need, how can it sacrifice one of its own Deputies in order to support a Minister who has clearly been involved in stroke politics? What has happened in this instance is appalling. The Minister for Health should come before the House to explain his actions. He came before us recently to discuss an item of legislation and no one wanted to take from the debate on that legislation by raising other issues. We want the Minister to come to the House to explain what is happening in respect of the primary health care centres, to outline the criteria used in respect of the 15 added to the list and to fully account for his actions. What is taking place at present is causing damage not just to the Labour Party and the Government but also to the roll-out of primary health care centres across the State. That is a tragedy for everybody involved.

Senator Michael Mullins: Information on Michael Mullins Zoom on Michael Mullins It is not often the case that one can refer to instances where Government charges are actually falling. In that context, I welcome the fact that the Minister for Jobs, Enterprise and Innovation, Deputy Bruton, announced significant reductions in the charges associated with co-operatives and those imposed by the Registrar of Friendly Societies. The cost of registering a new co-op has been reduced by up to 58%, while that relating to changing the name of a co-op has been reduced by 44%. The Minister is on the right track in this area but I urge him to accelerate the process of reducing the level of red tape, licensing rules and regulations because we want to make it easy for businesses to operate in this country. The Minister has some very good and innovative ideas and I urge him to move the process forward.

  Will the Leader facilitate a debate on workers' co-operatives in the near future? As Senator White will attest, the Joint Committee on Jobs, Enterprise and Innovation recently received a very interesting presentation from people involved with workers' co-operatives. These co-operatives have huge potential in the context of assisting with the creation of badly needed employment, particularly as those who run them have novel and innovative ideas. We should hold a full debate on co-operatives in the near future. I am sure other Members will support me in my request in this regard.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White We are in the final quarter of the European Year of Active Ageing and Solidarity between Generations. On Friday last I attended Age Action Ireland's conference in Croke Park at which Positive Ageing Week was launched and in the middle of which we currently find ourselves. On Monday last I attended another conference in Croke Park which was organised by the Third Age Foundation and which was hosted by the wonderful Mrs. Mary Nally. Esther Rantzen, who spoke at the conference, came to Ireland during the past six months in order to learn from Mrs. Nally how she might establish a senior helpline such as that which is operated by Third Age. The helpline to which I refer is for and is manned by older people. At the Third Age conference, the EU Commissioner for Employment, Social Affairs and Inclusion, Mr. László Andor, made an outstanding presentation. In commenting on a positive approach to ageing, he stated "The key is to ensure that, as people grow older, they can continue to contribute to the economy and society, and to look after themselves for as long as possible."

  Monday last was UN International Day of Older Persons. Today's edition of The Irish Times contains a beautiful photograph from the Google Silver Surfer 2012 awards, which were organised by Age Action Ireland and Google and which took place at the latter's headquarters yesterday. These awards reiterate the message put across by Commissioner Andor. Catherine Talty from west Clare, who is 96 years of age, won the golden IT award.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Does the Senator have a question for the Leader?

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White As the author the Fianna Fáil policy document, Active Ageing and Quality Care, I have a very serious question to put to the Leader. The programme for Government states "We will also extend BreastCheck to 65 to 69 year old women". Women are at the highest risk of developing breast cancer between the ages of 55 and 75. This claim is supported by the International Agency for Research on Cancer. While the programme for Government contains a commitment to extend BreastCheck to older women, a date for the extension of the delivery of the service has not yet been announced. I call on the Minister for Health, Deputy Reilly, to deliver on his promise to extend BreastCheck to women between the ages of 65 and 69.  It is a commitment in Fianna Fáil's policy document, Active Ageing and Quality Care.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I am mesmerised by the fact that Senator Byrne's party spokesperson on health has not been seen for the past ten days.

(Interruptions).

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke That same spokesperson had a major disagreement with the former Minister outside this House.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Does the Senator have a question for the Leader?

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke Yes. One of the issues that has arisen with regard to health care is the lack of financial management in the HSE. In fact, as few as 10% of the people involved in financial management have a qualification in financial management. We took over that system from the previous Government which allowed the situation whereby people with no expertise were appointed to positions. I ask that the Minister would now deal with this issue as quickly as possible. Another issue is that of junior doctors and I have raised it many times in the House. Junior doctors are only offered six month and 12 month contracts. This is causing a problem because they can get contracts lasting three to five years in other countries. I want that issue to be tackled before 1 January 2013 in order that contracts will be of at least two, if not three and four years duration. The Minister should come to the House to explain that the HSE will implement policies such as the employment of personnel with financial expertise and longer term contracts to those whom we need to work in the health care sector.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I welcome the promise by the Minister of State, Deputy Alex White, that he will bring proposals on alcohol policy to Government in the near future. Many of us have spoken about this in recent days and there is concern that the Government has not been fully alert to the sheer urgency of a new, fresh approach to the problem of alcohol in our society. We will await delivery on what the Minister of State has promised.

  I refer to another issue that troubles me and to what Senator Comiskey said about the relevance and importance of the issue of suicide. It is a very sensitive issue. I am also conscious there is an argument to be had about the vacancy in the National Office for Suicide Prevention. However, I wonder whether we are inclined to be overly focused on technical debates about those kind of issues. I am very challenged by what I see reported from Dr. Tony Bates who asks whether the debate on suicide is in itself a part of the problem. We often think we should be lancing taboos in society and the more we talk about things, the more we can make problems go away and this is probably true in the case of a range of issues. However, Dr. Bates's argument is very challenging because he asks whether all of the focus on suicide such as the proliferation of organisations and the good work of fund-raising for suicide awareness initiatives could in itself be part of some social permission for people, that it implies normalisation. This is a very sensitive issue and his point could be regarded as being controversial but it is important to approach a debate in a real spirit of truthfulness. I do not know what is best to propose to the House about it because if we ask for a further debate then we must consider whether we are contributing to the very problem that Dr. Bates is hinting at. One thing is sure and it touches on what I said yesterday in another context about child behaviour issues in schools. I will not use the phrase, "man up" as it is not inclusive language but we need to have the debate about values in our society, about what is going on in people's hearts, minds and souls. As politicians we can become too distracted by the day-to-day technical issues which we must deal with but unless we are serious about promoting a culture of deep respect for the dignity of the human person and deep reflection about what is contributing to people's consolation and to their desolation in our world at this time, then perhaps we are really not performing the public service that is demanded of us.

Senator Jimmy Harte: Information on Jimmy Harte Zoom on Jimmy Harte I ask the Leader for debate on the situation in the HSE north-west area. Many of the staff who work with people with disabilities or with autism, have had their travel halted. Unless the reason for the travel is a clinical one - this is very difficult to define - they are being informed they cannot travel. In a county like Donegal and it would also be the case in counties Kerry, Cork and Galway, travelling is part and parcel of providing health care and the health care system. I ask that the Minister of State come to the House to explain why the staff have been informed they cannot travel to carry out their duties unless it is at their own expense. The distance from Donegal town to Malin Head means this is a two-hour return journey. The HSE has informed staff there must be a clinical reason for the travel. My definition of "clinical" would be a requirement for surgery or a medical procedure. Many health services have been halted in County Donegal in the past month and it is possible they may not recommence until January 2013. I ask if the Minister is satisfied with this situation.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson Yesterday in her absence I congratulated Senator Hayden on her appointment as the Labour Party Whip in the House. I wish her well and look forward to working with her.

  On a point of clarification, Senator Colm Burke referred to my colleague, Senator MacSharry, our health spokesperson, as being absent and as having not been seen in the past ten days. I have the height of regard for Senator Burke. Senator MacSharry contributed to two health debates in the House last week. He is always present in this House and at the moment is attending a very important committee meeting. I wish to clarify that situation should the wrong impression go outside this Chamber.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne Senator Burke should withdraw his remarks.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson Is it the Leader's intention to have the Minister for Justice, Equality and Defence come to the House at some stage in the near future? It is important that he attend the House because he is fast becoming known throughout the length and breadth of the country as the Minister for closures. Not alone has he closed Army barracks throughout the country but he has also closed Garda stations throughout the country. As a result of the cutbacks to the Garda Síochána budget, he has ensured that outside of the main urban centres of Dublin, Cork, Limerick and Galway, gardaí are not in a position to provide drugs surveillance units. The staff have been redeployed to other duties because the funding is not available to continue surveillance duties. This is a very serious matter, particularly in Border areas because the Border is wide open for distributors to come in to distribute their drugs all over the north east, the north west, and as far as Dublin. I call on the Leader to invite the Minister to the House as a matter of urgency to provide clarification of this serious situation.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan It is good to follow Senator Wilson because this morning I want to congratulate and welcome on board and wish well my new colleague Whip, Senator Hayden. I wish her well in her duties in the future. Following Senator Wilson, I assure her that despite my esteemed colleague's comments yesterday, she has absolutely nothing to fear. I assure the House we will get on extremely well.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen The Senator can show her all the tricks of the trade.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan Senators may not realise that I have known Senator Hayden for a long time. I have no doubt we will get on very well.

  Senator Thomas Byrne is the acting Leader of the Opposition this morning and to him I counsel caution and urge calm.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne Your own party or the Labour Party?

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan It may be sexy political-speak to talk about stroke politics; nothing of the sort has been established.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne Deputy Varadkar said that, not me.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan I am sorry; the Minister, Deputy Varadkar, may have said something, looked like something or sounded like something, whatever, but nothing has been established. I suggest we should all be calm.

Senator Martin Conway: Information on Martin Conway Zoom on Martin Conway I echo the sentiments expressed by Senator Paul Coghlan. I join my colleague, Senator Michael Mullins, in commending the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, for the reduction in fees for the co-operative sector which has made a valuable contribution to the economy during the years, particularly in rural areas. Many marts and other cottage industries were built successfully on a co-operative model, with no senior managers claiming salaries of €150,000 per year. Instead, people are paid a fair day's wage for a fair day's work. At European level, the co-operative movement has moved into the manufacturing and retail sectors and, in the process, created thousands of jobs. Based on our limited but very successful history of co-operative enterprises in this country, there is potential for large-scale job creation arising from the Minister's initiative. I urge State agencies, including the National Asset Management Agency, to engage with up and coming co-operatives. There are vacant NAMA properties throughout the State which might be used by co-operative enterprises and many other services and infrastructures which could be put at the disposal of this most noble of job-creating sectors. Will the Leader invite the Minister to the House in due course to set out his views on the co-operative movement? It is an interesting route to job creation and could be an important component of efforts to deal with the ravages of the recession.

Senator John Gilroy: Information on John Gilroy Zoom on John Gilroy I support Senator Rónán Mullen in highlighting the remarks made recently by Dr. Tony Bates on the issue of suicide. I was not aware of the particular remarks, but when Dr. Bates says something, it is important that we listen carefully. The issue of suicide prevention is extremely complex and challenging and I thank the Senator for highlighting that complexity. It is important that we have a debate which encompasses all facets of the issue. There are many myths and misconceptions abroad in regard to suicide, as well as well meaning truisms which may not accurately reflect reality. This is the single greatest challenge facing Irish society - we can live with other crises, but the current situation in regard to suicide is intolerable. As such, I ask the Leader, notwithstanding the discussion that took place quite recently in the House, to provide an opportunity for a debate which encompasses the points Senator Rónán Mullen has raised and allows us to tease out the nuances and complexities of the issue.

Senator Catherine Noone: Information on Catherine Noone Zoom on Catherine Noone I join the calls for another debate on suicide. A format similar to the one we used to discuss job creation would be particularly useful and allow us to devise action points and targets in addressing this horrible crisis.

  Colleagues mentioned yesterday that this is Simon Week, an initiative of the Simon Communities of Ireland. Members may not be aware that it is also breastfeeding awareness week. The latest statistics for breastfeeding rates are stark, with Ireland very low down the table. To give one comparison, less than six out of ten mothers in this country breastfeed their babies compared with more than nine out of ten in some of the Nordic countries. While it might not be the easiest issue to discuss, it is vital that the benefits of breastfeeding are highlighted in the public sphere. An interesting statistic I came across was that Ireland was one of the largest producers of powdered milk for babies. While that is very good news for the industry, it does point to the high demand for formula in this country and the correspondingly low incidence of breastfeeding. The low rate persists despite the wealth of research showing how beneficial it is for children's development. The health service should be actively engaged in promoting breastfeeding, while acknowledging that some women will experience difficulties.

Senator Terry Brennan: Information on Terry Brennan Zoom on Terry Brennan I welcome the finding in Fáilte Ireland's survey for the period January to July that there was a 14% increase in the number of overseas visitors to this country. The hard work being done by the hotel industry is clearly paying off. Ireland now offers an improved experience for visitors in terms of value for money, which augurs well for the success of the Gathering next year.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins The acting Leader of the Opposition, Senator Thomas Byrne, talked about what he referred to as the "guff" coming from the Government. We have heard a great deal of guff from the Senator today. As we have explained, the Government is a two-party coalition charged with the difficult task of clearing up the unholy mess left by the Senator's party in government. The Government is in it for the long haul. It is not a temporary little arrangement, as a former leader of the Senator's party once described a coalition arrangement in which he was involved.

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne That was 20 years ago.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins The Government will strive to act in accordance with the mandate given to it by the people to clear up the mess created by the previous Administration.

  Senators Thomas Byrne and Sean D. Barrett raised the issue of consumer confidence. I will certainly request a discussion on this issue with the relevant Minister as part of our deliberations on the forthcoming budget.

  Senator Ivana Bacik called for a debate on the broader issue of children's rights after the referendum on 10 November. I will be happy to facilitate such a debate. The Minister was due to come to the House to discuss these issues last week, but we decided to defer the discussion until after the referendum. I compliment all Members who spoke during the debate yesterday on the proposed constitutional amendment. I am sure we will have another excellent discussion today when Committee and Report Stages of the legislation are taken.

  Senators Cáit Keane and Sean D. Barrett welcomed the latest Exchequer figures. We still have a long way to go in getting the economy back on course, but the figures certainly are encouraging and a step in the right direction. I will invite the Minister for Finance to the House in early course to discuss these figures as part of our preparations for the budget.

  Senator Denis O'Donovan asked that the Minister for Agriculture, Food and the Marine, Deputy Simon Coveney, be invited to the House to discuss fish farming. The Minister will be in the Chamber tomorrow for a discussion on the Common Agricultural Policy reform proposals. I am sure he will be more than willing to discuss the issues the Senator raised, just as he was happy to discuss the same matter on his previous visit.

  Senator Aideen Hayden joined other Members in calling for a debate on the future of the banking sector. I will try to arrange that debate as soon as possible.

  Senator Feargal Quinn talked about the use of timber for fuel. I will try to get the Minister into the House to discuss that matter. The Senator also complimented the Road Safety Authority in the light of the recent announcement that Dublin was one of the safest cities in the world in terms of the level of road traffic accidents. Dublin City Council also deserves to be congratulated on its efforts in this regard.   I note the Senator's comments on working a day for free. Next week, which has been designated small and medium-sized enterprise week, the Minister of State, Deputy Perry, will come before the House for a debate lasting two and a half hours. Perhaps the Senator will raise this issue with the Minister of State. For the information of Senators, the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, will also come to the House to discuss the jobs issue in the first week of November.

  Senators Comiskey, Mullen, Gilroy and Noone referred to remarks made by Dr. Tony Bates on the issue of suicide. Delays in filling the position of director of the National Office for Suicide Prevention were also raised. I outlined yesterday that the position of director first became vacant on 10 September and the interview process for the post will take place on 22 October. In the interim, the assistant national director of mental health is assuming responsibility for the National Office for Suicide Prevention. It is incorrect to suggest, as it was elsewhere yesterday, that the position has been left unfilled for more than nine months. We will try to arrange a debate on this issue. While I understand the House has debated it twice in the past 12 months, I am willing to discuss with Senators how we can frame a future debate on the issue.

  Senators Mullins and Conway noted the reduction in charges for co-operatives, which is to be welcomed by all concerned. We can have a debate on the issue of co-operatives and Senators may raise it with the Minister of State, Deputy Perry, and the Minister, Deputy Bruton, when they come before the House in the weeks ahead.

  Senator White referred to Positive Ageing Week, which was also mentioned by Senator Moran yesterday. The Seanad has played its part in promoting the positive ageing agenda, for example, through the hearings of the Seanad Public Consultation Committee, and we will continue to do everything possible to promote the issue. I will make inquiries regarding the Senator's query on the possibility of extending the BreastCheck service to older people.

  Senator Colm Burke raised the issue of financial management in the Health Service Executive. The purpose of the Health Service Executive (Governance) Bill 2012 is to change the structure of financial management in the HSE. I am sure the House will have a comprehensive debate on the issue when we take Committee Stage next week. The Senator also raised the issue of extending the contracts of junior doctors for two or three years. This matter can be addressed when the Minister for Health comes before the House.

  Senator Mullen called for a debate on alcohol policy. As soon as the Minister of State, Deputy Alex White, gathers breath and reads his brief, we will have such a debate.

  Senator Jimmy Harte raised an issue related to the HSE in the north west. I suggest he raise the matter on the Adjournment for the purpose of securing a specific reply.

  Senator Wilson called on the Minister for Justice and Equality to come before the House. The Minister has been in the House on numerous occasions and usually comes in person for all debates on legislation produced in his Department. I am sure he will continue to do so and several more Bills from his Department are due before the House. Drug surveillance duties are an issue not only for the Garda Síochána but also for the Customs service. I commend the Garda and the Customs service for the major drugs seizures they have made in recent weeks.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson Only 5% of the drugs in circulation are seized by the authorities.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins What can I say in response to Senator Paul Coghlan? He is calmness personified.

  Senator Noone has highlighted the fact that this is breast-feeding awareness week, while Senator Brennan referred to good news as regards tourism figures. I hope we will have further good news next year when the Gathering takes place.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry On a point of order, I understand it is the tradition in this House for the Chair to intervene if an attack is made on an individual who is not present in the Chamber.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That is not a point of order. The position was clarified.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry It would be reasonable to allow me to confirm my attendance in the House for many debates.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke As the Senator is well aware, the record of the House speaks for itself.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry Having been corrected on this issue many times in the past when I criticised Members who were not present-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Fianna Fáil Party Whip outlined the position.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry -----I expect to be afforded similar protection by the Chair. I ask for an opportunity to point out that I have attended on each day-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Chair is not involved in this matter.

Senator Marc MacSharry: Information on Marc MacSharry Zoom on Marc MacSharry Senator Colm Burke, a newer Member of the House, is well aware that Senators must attend to many duties, including in the House.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That is not a point of order.

  Senator Thomas Byrne has proposed the following amendment to the Order of Business, "That the debate on the criteria used for the inclusion of 15 extra primary care centres be taken today." Is the amendment being pressed?

Senator Thomas Byrne: Information on Thomas Byrne Zoom on Thomas Byrne Yes.

Amendment put:

The Seanad divided: Tá, 14; Níl, 28.

Níl
Information on Sean D. Barrett   Zoom on Sean D. Barrett   Barrett, Sean D. Information on Ivana Bacik   Zoom on Ivana Bacik   Bacik, Ivana.
Information on Thomas Byrne   Zoom on Thomas Byrne   Byrne, Thomas. Information on Paul Bradford   Zoom on Paul Bradford   Bradford, Paul.
Information on David Cullinane   Zoom on David Cullinane   Cullinane, David. Information on Terry Brennan   Zoom on Terry Brennan   Brennan, Terry.
Information on Marc MacSharry   Zoom on Marc MacSharry   MacSharry, Marc. Information on Colm Burke   Zoom on Colm Burke   Burke, Colm.
Information on Rónán Mullen   Zoom on Rónán Mullen   Mullen, Rónán. Information on Eamonn Coghlan   Zoom on Eamonn Coghlan   Coghlan, Eamonn.
Information on Brian Ó Domhnaill   Zoom on Brian Ó Domhnaill   Ó Domhnaill, Brian. Information on Paul Coghlan   Zoom on Paul Coghlan   Coghlan, Paul.
Information on Denis O'Donovan   Zoom on Denis O'Donovan   O'Donovan, Denis. Information on Michael Comiskey   Zoom on Michael Comiskey   Comiskey, Michael.
Information on Ned O'Sullivan   Zoom on Ned O'Sullivan   O'Sullivan, Ned. Information on Martin Conway   Zoom on Martin Conway   Conway, Martin.
Information on Averil Power   Zoom on Averil Power   Power, Averil. Information on Maurice Cummins   Zoom on Maurice Cummins   Cummins, Maurice.
Information on Feargal Quinn   Zoom on Feargal Quinn   Quinn, Feargal. Information on Jim D'Arcy   Zoom on Jim D'Arcy   D'Arcy, Jim.
Information on Kathryn Reilly   Zoom on Kathryn Reilly   Reilly, Kathryn. Information on Michael  D'Arcy   Zoom on Michael  D'Arcy   D'Arcy, Michael.
Information on Jim Walsh   Zoom on Jim Walsh   Walsh, Jim. Information on John Gilroy   Zoom on John Gilroy   Gilroy, John.
Information on Mary M. White   Zoom on Mary M. White   White, Mary M. Information on Jimmy Harte   Zoom on Jimmy Harte   Harte, Jimmy.
Information on Diarmuid Wilson   Zoom on Diarmuid Wilson   Wilson, Diarmuid. Information on Aideen Hayden   Zoom on Aideen Hayden   Hayden, Aideen.
  Information on James Heffernan   Zoom on James Heffernan   Heffernan, James.
  Information on Imelda Henry   Zoom on Imelda Henry   Henry, Imelda.
  Information on Lorraine Higgins   Zoom on Lorraine Higgins   Higgins, Lorraine.
  Information on Cáit Keane   Zoom on Cáit Keane   Keane, Cáit.
  Information on Denis Landy   Zoom on Denis Landy   Landy, Denis.
  Information on Marie Moloney   Zoom on Marie Moloney   Moloney, Marie.
  Information on Mary Moran   Zoom on Mary Moran   Moran, Mary.
  Information on Tony Mulcahy   Zoom on Tony Mulcahy   Mulcahy, Tony.
  Information on Michael Mullins   Zoom on Michael Mullins   Mullins, Michael.
  Information on Catherine Noone   Zoom on Catherine Noone   Noone, Catherine.
  Information on Susan O'Keeffe   Zoom on Susan O'Keeffe   O'Keeffe, Susan.
  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 John Whelan   Zoom on John Whelan   Whelan, John.


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

Amendment declared lost.

  Order of Business agreed to.

An Bille um an Aonú Leasú is Tríocha ar an mBunreacht (Leanaí) 2012: Céim an Choiste

Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan The substance of the debate on Committee Stage is the wording of the proposed constitutional amendment which is set out in the Schedule to the Bill. The sections of the Bill are merely technical. Therefore, in accordance with long-standing practice, debate on them is postponed until consideration of the Schedule has been completed. In accordance with precedent and Standing Order 122, is it agreed that consideration of sections 1 and 2 be postponed until the Schedule has been disposed of? Agreed.

AN SCEIDEAL

SCHEDULE

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane Tairgim leasú a 1:

I gCuid 1, leathanach 7, líne 6, “go comhionann” a chur isteach i ndiaidh “uile”,

agus

I gCuid 2, leathanach 9, líne 5, “equally” a chur isteach i ndiaidh “children”.

  I move amendment No. 1:

In Part 1, page 6, line 6, after “uile” to insert “go comhionann”,

and

In Part 2, page 8, line 5, after “children” to insert “equally”.

I move this amendment because it is important that the word "equally" be included. Sinn Féin Members in both Houses have expressed broad support for the proposed wording of the amendment, but we have also pointed out that it differs from the text agreed to by the all-party committee. By adding the word "equally" we could enhance the wording of the proposed article. If we are to adhere to the true meaning of the 1916 Proclamation which promised to cherish all the children of the nation equally, this would be a significant and important amendment.

  The purpose of the amendment is to provide strong protection for children and make a real difference in their lives. This means all children, regardless of whether they are from disadvantaged backgrounds, members of the Traveller community or suffering from poverty. We held a number of good debates on these issues in the context of previous Bills and have called for Government policies to be both poverty-proofed and child-proofed. This is important, given the reality faced by many children in the State, with more than 100,000 living in poverty. We must examine how we deliver services and be honest in admitting that the State did not cherish all the children equally in many of the services for which it was responsible. Many children are on waiting lists for health care or suffering because of housing policies which drive families into inappropriate accommodation. If we are truly to deliver on the logic of the referendum, we have to go beyond words to ensure children and their rights are put at the centre of Government policies.

  I am sure the Minister for Children and Youth Affairs appreciates Sinn Féin's position on these issues. We supported the all-party committee and Deputy Caoimhghín Ó Caoláin was vocal in expressing his support for doing the right thing by children and learning from the mistakes of the past. We genuinely want to arrive at a wording that will enable or, in some cases, force the State to do the right thing by children. That is the purpose of the amendment. I look forward to hearing the Minister's response.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik On Second Stage a number of Senators spoke about the merits of the wording presented in the Bill and, in particular, how it would guarantee greater equality among children, particularly those from marital families who heretofore were not capable of being adopted in the same way as those from non-marital families. I appreciate the principle of inserting a reference to equality. The Irish Human Rights Commission has suggested consideration be given to the inclusion in the Constitution of an effective guarantee of equality. However, I prefer its approach to securing a guarantee of equality by amending Article 40(1) which has been widely criticised as being too limited.

  I do not wish to pre-empt the Minister's reply, but I would be concerned about simply inserting the word "equally" into the current text of Article 42A(1). I am not sure it would work. The article would state, "The State recognises and affirms the natural and imprescriptible rights of all children equally". Vindicating the natural and impresciptible rights of certain children would mean that they were treated unequally in that they required additional support or help. I am not sure that is captured by the word "equally". While I appreciate the intention behind the amendment, I am not sure it is the correct way to proceed.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I apologise for arriving late for the debate, but I was launching a report produced by the One in Four organisation.

  There is considerable potential in the proposed Article 42A(1) and how it is interpreted will be important because it is the bedrock of the entire constitutional amendment. In the event that the courts seek to establish the intention of the framers to guide their interpretation of the article, will the Minister confirm that the amendment has been drafted to be in keeping with Ireland's international treaty obligations as contained in the Convention on the Rights of the Child and as recommended by the UN Committee on the Rights of the Child on two separate occasions, in 1998 and 2006, respectively? This provision should guide and potentially strengthen the protection of children in other areas when read with other laws. It provides signposts for the courts, policy-makers and decision-makers that children are independent rights holders.

  Much has been made of the phrase "as far as practicable", but this is standard constitutional wording and it will be our role, as legislators, to articulate and express these rights appropriately in legislation.

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank Senator David Cullinane for moving the amendment. I welcome Sinn Féin's stance on the constitutional amendment and acknowledge the work Deputy Caoimhghín Ó Caoláin has done for many years. He has played a sterling role in the development of the committee's work, ensuring children remain central to our considerations and building all-party support for the amendment.  A couple of points have emerged in respect of the article recently. The phrase "cherish all the children equally" was used. Yesterday, a number of Senators said this has a resonance for historic reasons with many people and it emerged from the committee wording. However, when I had to make the transition from the committee wording to constitutional language and started to examine the meaning of the phrase from a legalistic point of view and what it might imply, I found the phrase was much weaker than what I am recommending should be in the Constitution. When one examines the word "cherish" from a legal point of view and tries to define precisely what it would mean, it does not take us very far. Instead, what I am saying is that, "The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights." This is a stronger formulation than the committee wording and would have more impact in terms of an approach to children and children's rights.

In terms of equality, I am clear that the articles apply to all children and there is no discrimination between marital and non-marital children. The first article mentions all children. The new sub-article recognises and affirms the natural and imprescriptible rights of all children and it does require the State to vindicate those rights. I cannot say how precisely this will be interpreted, no more than anybody here can. As the Attorney General says, every word put into the Constitution has a meaning. That is why I have been careful in the range of words used. We have built up the formulas in a careful way, having regard to other rights already enumerated in the Constitution. At the end of the day it is the Supreme Court which will decide, given all the other elements of the Constitution, precisely what the meaning is. It is a strong statement. It is the first time the Constitution will have specifically spoken about the rights of the child as an individual. Some commentators would make the point that under the more general rights in the Constitution children are included; one could make that argument. I have said that what is being done here is in addition to that. For the whole range of reasons which almost every Senator spoke about yesterday, we have decided to have to a stand-alone article for children. It is generally accepted, given everything that has gone before, that this is the right way to approach the issue.

I have considered the amendment and appreciate the constructive objective behind it. I remind the House that Article 40.1 of the Constitution provides that general guarantee of equality under the law which applies to children. It is difficult to predict what additional protections or rights it is intended to provide under the formulation suggested by the Senator. It is unclear, as mentioned by Senator Bacik, if the intention is to ensure an equality of treatment or an equality of outcomes. If this is intended to comprehend a right to additional assistance to all children or between children in different circumstances, it is not clear how that would be realised. The question could arise as to whether it could preclude any assistance by the State to positively discriminate in favour of those who are disadvantaged. To accept this wording could establish that potential conflict between the new article 42A and Article 40.1 which reads:

All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

I made some comments yesterday on the United Nations Convention on the Rights of the Child. Senators agreed that this is a very broad convention which outlines a whole range of rights and principles which the UN, when it first formulated it, believed should be signed up to by all countries and implemented either by legislation or constitutionally. Countries vary in how they adopt it. Ireland signed and ratified it. Only two countries have not done so. It is interesting to note the Vatican was the fourth country to sign up to the United Nations Convention on the Rights of the Child and accepted the principles outlined therein about support for children, maintaining contact with families, developing the child's individual potential and so on. Ireland's approach has informed Irish policy making and legislation and continues to inform and has informed the work on this amendment. We have done this in our own way, having regard to the provisions already in the Constitution. We have gone for that balancing of rights, therefore, the words "proportionate" and "exceptional" are included. I have approached the issue primarily based on the all-party committee's work. We did not take a decision as the Irish Human Rights Commission suggested yesterday to incorporate all of the United Nations Convention on the Rights of the Child because that was not practicable.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane I thank the Minister for her frank and genuine response. We accept that to interpret the wording that goes into the Constitution from a legal perspective might be different from the intent that any party or individual may have in terms of wanting to put a formula of words into the Constitution. It is then the Minister's responsibility to interpret what that will mean. I accept that. The Minister mentioned the word "cherish". That word was in the original agreed wording from February 2010, which reads, "The State shall cherish all the children of the State equally". I accept what the Minister has said in respect of the word "cherish" but our amendment seeks to include the word "equally". We want to ensure the equality principle is clear and explicit in the wording.

  In addition, we want to make it patently clear for those who adhere to and will have to implement the constitutional amendment, that we mean equality and treating people equally. It is important that we have a frank, open and fair debate on the issue. We do not want the debate muddied by, for example, not having the 50:50 referendum coverage. Although not strictly related to the amendment, I take the opportunity to say to the Minister that we should not be afraid to listen to people who have alternative views and to challenge them, where necessary. It is important that all parties accept this and will make the arguments. For those who make the case against, if there is 50:50 coverage those who favour the passing of the referendum should have no fear. Although some Members said yesterday they were in favour of abolishing the 50:50 coverage, I am not in favour of doing so. It would be unfair to use the children's referendum as an opportunity to do that.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh If it were possible, it would be ideal to incorporate Senator Cullinane's sentiments. We have to acknowledge that children are born into varying circumstances, including socio-economic and attitudinal. As a consequence I am persuaded by the Minister's response. I acknowledge she has done a good job in crafting the amendment for the Constitution. There was a certain challenge in balancing the rights of the family and the rights of the child in a way that everybody of reasonable views could subscribe to. I ask the Minister about the clause "due regard for the natural and imprescriptible rights of the child."  Does the Minister accept that such an important phrase should include the right of children to a father and a mother and to know their identity? An issue that has often cropped up but has never really been addressed is the lack of involvement by fathers and, in some instances, their not accepting their responsibility for having brought a child into the world. It is wrong and the State should seek to ensure that fathers meet their obligations. Sometimes they are excluded from the rearing and development of their children. Perhaps this is due to a fractious relationship with the natural mother. The issue must also be examined.

  I like the phrase used in the amendment because it covers some of the issues that I have and shall raise. For many years I have been a strong advocate for children knowing the identity of their natural parents and for them to be involved. I accept that in exceptional circumstances parents do not measure up to fulfilling their parental responsibilities. Adoption should be allowed when that happens.

  The State should use every effort to assist and work with families that need a little assistance to be good family units and parents. That is the ideal and any move away from that stance on child welfare would seriously concern me.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I accept Senator Cullinane's point that those of us who support the referendum should be comfortable debating it and dealing with any concerns. As I said yesterday a number of times - probably too many times - we have a duty to go out and inform people. They need to be informed. The referendum is only on one page and is small when compared with the 20 pages of the stability treaty. We are dealing with matters that go to the heart of people's views on children and families. People will have a strong natural response to it. We want to ensure that people understand why we are putting the wording in the Constitution, what we are putting in and what we are not putting in. Again, I agree with the point the Senator made.

  I must reiterate my concern about his comments on the amendment. First, I do not believe that the amendment would achieve what the proposers intend. As I have outlined, and partly because the formulation is somewhat ambiguous and could have unintended consequences, Article 42A.1 refers to all children. The provision does not discriminate between different groups of children. It implies that all children are equal because they are all acknowledged under the article as enjoying natural and imprescriptible rights. That means it covers all of the children. We are not defining some children in particular circumstances. It is all children.

  As I have said, children do enjoy a constitutional right to equality under Article 41. The interplay between it and Article 42A.1, if amended, as suggested would be unclear. As I said earlier, it is my experience from drafting the wording, and working with a range of people to arrive at it, that when one adds words and new concepts they must be used very sparingly. The reason is that we must examine the Constitution as a whole and the interplay between articles, not just in Article 42A but throughout. Therefore, one must add words sparingly and read the Constitution as a whole.

  I understand the sentiment expressed by Senator Cullinane and where it comes from. As he said, the amendment has implications for other legislation. It has implications for resource allocation. It also has implications for the concept of child-proofing and I was a big proponent of equality-proofing. Both are imperfect concepts as we have all seen over the years. The amendment does not solve all of the problems when it comes to equality and child-proofing. As a concept and an approach to major decision-making in Government, policy or legislation they are lenses - certainly one of the lenses - through which we should view decisions. Obviously there is more scope for us to do that than was done previously. We are having a constitutional amendment because children have been so invisible. We did fail in terms of child-proofing decision making when it came to resources and court decision making over the years. I hope the Senator will understand that it is on that basis that I cannot accept his amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I ask the Minister to respond to the point I made on the rights of a father and a mother.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I beg the Senator's pardon. I did mean to respond to his points. I agree with the point that he made on identity. The Government will introduce legislation and there will be a change in the registration Act to ensure that fathers are named on birth certificates. I have never understood why they are not because they should be. Only in exceptional cases will a father not be named on a birth certificate. Identity is critical for the individual, as we know. For example, we have become more conscious of the issues surrounding identity in intercountry adoptions. If one talks about identity in Ireland we know that there are so many people who want to access information, to trace their origins and to have medical information but we have constitutional difficulties with that. Members will remember that when an attempt was made to deal with the issue there was a big reaction. People were worried about the rights of mothers who had placed children for adoption and expected that their action would remain secret forever. There are delicate balances but we should be clear about birth certificates.

  I am quite sympathetic to the point made by the Senator on how family law has dealt with fathers and men. Every effort should be made for both parents to continue their involvement in the care of their child where appropriate and unless there are circumstances such as violence, domestic violence or other reasons. We are developing new services such as the new mediation service and the conflict resolution services for children in such circumstances. Barnardos also runs two pilot projects in Dublin that work with families going through a separation. The courts are more sensitive to the issue as well.

  I take the points made by the Senator. We still have work to do on the issue. A great number of new services are being developed that have resulted in men becoming involved in their local communities. I have seen a lot of work done with fathers. The unemployment situation has given rise to more pressures being placed on men and women. Traditionally, these services were availed of by women but they reach out more to men now.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I welcome the Minister's reply, particularly her comments on the schemes undertaken by the Department with Barnardos to address situations where families are in difficulties and parents are separating or divorcing. Such schemes ensure that the interests of the child are paramount.

  The amendment is pertinent. An expressed intention of the referendum is that we try to achieve a situation where children are reared with their fathers and mothers. Does the Minister agree? I know that there are exceptional circumstances such as the example she gave of domestic violence. There is a role for the State to be much more proactive when dealing with these problems in families. It should assist them to move beyond their difficulties to where the children can grow up in a loving and nurturing environment. For a long period the State has failed to address the problem. I know, as I am sure other Members do, of marital relationships that ran into difficulties but the couple stayed together in the interests of the children and until they reached adulthood or thereabouts. That is commendable. Those parents put the interests of their children ahead of their own personal desires and interests and we should encourage that type of giving. When people marry and have children it is all about giving and we know that it is in the giving that one receives. We should nourish that attitude in society. There is still a low level of divorce in Ireland and we should ensure that we work to maintain it.  I am tempted to submit a matter for the Adjournment on this issue.

  A recent report in Sweden dealt with mental illness in adults and compared adults from families that were divorced and families that stayed together. The report was conducted over quite a long period, from 1968 until 2006 if memory serves me correctly. It demonstrated that the incidence of mental health illness in middle-aged people from broken homes where marriages had failed was much more pronounced than for others. There are many good reasons, not least economic ones, we should plough resources into the area I have mentioned. We should assist people get over difficulties rather than take the other option, which oftentimes, I am sorry to say, social workers and the legal profession advocate. Instead, they should try to deal with the underlying difficulties to see if the relationship can be repaired and restored. We do all that in the interest of children.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald A stable childhood is the very best thing one can offer any child. However, it is realistic to point out that families do run into difficulties. The State is doing a lot to support those families. In recent years in particular, significant funding has been put into counselling services. While there are waiting lists for these services in some places, there has been a significant increase in resources for them. The 102 family resource centres have also received funding. I accept everybody is stretched at this time, but family support is an area in which the State invests heavily.

  Equally, we must be realistic about the pressures on families. Take, for example, the number of children who came into care in 2011 when we had 2,218 admissions to care. Almost half of those were voluntary admissions. The others were as a result of court or emergency care orders. The second largest category of children coming into care, 772 children, or 35% of children admitted, was due to abuse. The Constitution talks about supporting the family and the primary role of the family and that does not change with this amendment. However, the balance in the Constitution through the amendment ensures that in those circumstances where families are not coping - I accept the best place for children is with their families - there is clarity around the intervention and a good alternative offered.

  Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.

  Amendment put and declared lost.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen Tairgim leasú a 2:

I gCuid 1, leathanach 7, líne 10, “suntasach” a chur isteach i ndiaidh “dochar”,

agus

I gCuid 2, leathanach 9, líne 10, “and significantly” a chur isteach i ndiaidh “prejudicially”.

  I move amendment No. 2:

In Part 1, page 6, line 10, after “dochar” to insert “suntasach”,

and

In Part 2, page 8, line 10, after “prejudicially” to insert “and significantly”.

I welcome the Minister to the House and apologise for the fact I was not in a position to hear her responses yesterday. I have found the past few minutes of this debate particularly engaging. Many important and profound points have been made, both by Senator Jim Walsh and the Minister. It occurred to me at one point that in recent months as we have been reflecting on the referendum, much of what we are talking about focuses on dealing with problems that arise.

  The Constitution is also a document that sets out our national vision. It is our basic law, our bunreacht. We also have our directive principles of social policy, which enjoy a different status in terms of justiciability. The Constitution lays out the vision for what we seek to be as a people and a society. It occurred to me that in another time and place, we might also have seen fit to find some constitutional means of expressing our national aspiration that the State would acknowledge or pledge to respect and vindicate, as far as practicable, the natural right of children to be raised by their biological parents. The gold standard internationally is recognised as two biological parents in a low conflict marriage. This aspiration must be circumscribed by law. People go to prison and people are bereaved, etc. However, perhaps in the future we will find a fair and respectful way, mindful of the complexities of so many people's lives, to be truthful about what we believe to be in the best interests of children and what we should seek to promote and support as a state.

  I mean this in no intemperate sense, but in a playful sense, when I say that I am always amused as a politician - I recognise why it happens - when I hear the Vatican being roped in in support of particular measures and on other occasions cut adrift when its philosophy and values are challenging. This comment is not in any way directed at the Minister. I am sure the papal nuncio will take consolation from the fact that were the country in question Iran, the Vatican would not be cited with approval in the national parliament. I hope this citation betokens a welcome thaw in relations. It seems there is goodwill on all sides.

  While welcoming the referendum proposal, I commend the Minister and others, particularly Senator van Turnhout who has invested much time, energy and personal commitment on this issue. People like Dr. Geoffrey Shannon and many others deserve great credit for their focus on what needs to be done to vindicate the rights of children in society. I stated yesterday that I felt it my duty to examine the text closely to see whether it was the best it could be. I offer only my own opinions, having regard to the advice I said I would seek and the study I said I would give the matter. I have submitted two amendments which I believe would shore up what I regard as the intended meaning of the Constitution. I think that what I propose will make the meaning more coherent and, perhaps, prevent certain phrases from introducing any unhelpful incoherence. We should avoid confronting our courts with significant interpretive challenges in the future.

  Amendment No. 2 has to do with the test for parental failure. As we know, the constitutional order being replaced provides that the State shall endeavour to supply the place of the parents where parents fail, for physical or moral reasons. We are moving away from that notion of the reason for the failure towards introducing a definition of the level of failure. What is proposed is that the failure would be to such extent that the safety or welfare of any of the children is likely to be prejudicially affected. This is a new specification of parental failure and is not present in the current wording of Article 42.5.

  The phrase "affect prejudicially" appears already in the Constitution in Article 44.2.4o, which provides:

Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.

We note that the phrase "affect prejudicially" is used in connection with a child's right. However, the new wording in the proposed Article 42A connects the notion of prejudicially affecting to the question of a child's welfare. It is clear that welfare is a more indeterminate concept than the notion of a right and possibly a concept with a less substantial constitutional and legislative status.

  What I am saying is that the notion of prejudicially affecting here might, for example, have a very low threshold.  We can contemplate with serenity the idea that even the slightest impact on a right would be something the Constitution would forbid, although it does allow it in some cases. If we are dealing with something that is more difficult to determine, such as welfare, then the notion of something being prejudicially affected, were that to mean even a slight negative impact, might be quite troublesome for many voters. In all of the child care, adoption and guardianship Acts, I can find only one mention of the cognate term "prejudice" and, again, it is in connection with children's rights as distinct from welfare. The phrase talks about the High Court giving "a direction in respect of such order, extension or variation which would prejudice, or otherwise interfere with, the rights of the child in the proceedings". Again, one has the notion of prejudice linked with prejudicing rights.

  What I am trying to suggest is that the clause is at least partly innovative. I am concerned that the phrase "prejudicially affected" is rather vague. It does not of itself imply failure on the part of parents to talk about a child's welfare being "prejudicially affected". It is obviously linked with parental failure but it is the test of parental failure that will permit the State to intervene. Bearing in mind its dictionary definition, "prejudicial" connotes a negative or injurious effect when applied here to the question of child welfare. However, it does not of itself denote a negative effect that would, for example, be so injurious or sustained as to constitute a serious or significant parental failure.

  Good parents may sometimes act in ways that will impinge negatively on their children's welfare, but we would regard that in many cases as being a long way from what we would describe as the kind of parental failure that requires the State to endeavour to supply the place of parents. As we all know, all parents fail at some time or another. Good parents fail, but failure can be momentary, it can be temporary, it can be accidental, it can be substantial or it can be ongoing. Therefore, the question is: what is the level of failure that can attract State intervention of the kind to be contemplated by the Constitution? In a sense, we are introducing a threshold for failure that is not referred to in the existing article. This is why I say we could be presenting the courts with a significant interpretative challenge. I wonder whether the phrase "prejudicially affected" is out of step with the phrase "in exceptional cases" and with the term "fail". I ask this in a spirit of genuinely seeking to deal with a problem I think may be there. I took advice and agonised about what might improve the situation. The wording I propose is that the child's welfare could be "prejudicially and significantly affected".

  What I do not want to do is to introduce such a high threshold that the State would not be able to do what we know the State must be able to do. However, if one asks the question, "If we regard a parental failure as not being significant, should the State be allowed to intervene in the way contemplated?", the obvious answer is "No". If a failure is not significant, clearly it is not the time for the State to intervene. Therefore, I believe the use of the phrase "and significantly" might assist matters.

  There are people who, rightly or wrongly, are concerned about what they would see as a busybody State. They want a caring State but they do not want a busybody State. They want a State that is ready and able to intervene when appropriate but they do not want a State under which social workers or others intervene in matters that are not appropriate. In countries such as Sweden, controversies have occurred in regard to intervention by the state services in ways that turned out to be inappropriate. Of course, this happened in cases in which parents were not perfect, but the problem was that their imperfection was not to such an extent that the state had a right to intervene. These are difficult issues.

  Looking at what is set out in legislation and elsewhere, it is hard to find anything that helps us understand what "prejudicially affected" might mean. By contrast, the concept of "significant" is to be found in Article 35.3.b of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which states: "The Court shall declare inadmissible any individual application submitted under Article 34 [where] ... the applicant has not suffered a significant disadvantage". It is not proposing a word that has not been used or that does not have some standing.

  My amendment would add coherence to the relevant subsection by adding the phrase "and significantly" after the word "prejudicially". The notion of a significant negative effect is already made use of in Article 35.3.b of the European Convention for the Protection of Human Rights and Fundamental Freedoms. I said that people are sometimes worried about the State's intervention. Those concerns are sometimes grounded in reality and sometimes ill-founded. However, there are situations in which one does have to adjudicate on whether such concern is grounded or ill-founded because one can remediate the situation in advance and prevent the possibility of misunderstanding. It is in that spirit that I have proposed this amendment.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I said yesterday I wanted to make a few points on this provision. I have stated on several occasions that I hoped the wording of the amendment would include the word "proportionate" and it is significant that the Minister has included it. This will perhaps address some of the concerns Senator Mullen has raised.

  I also very much welcome the removal of the specification of failure "for physical or moral reasons" and the insertion in its place of the phrase "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected". I believe this reframes how we view child protection. Instead of looking to why parents fail, we will instead be looking at the impact on the child. All too often, I have heard of cases which start with somebody, perhaps a teacher or health professional, reporting a concern about a child. The social worker will arrive at the family's home to investigate the concern and, given the current constitutional framework, instead of first looking at the child, the family and the surrounding environment, the social worker will have to ascertain the marital status of the parents because the threshold for intervening in a married family differs so substantially from that for intervening in a non-marital family.

  We have the focus all wrong in the current situation, in which it seems intervention is more about building a case against the family. Obviously, in exceptional cases in which a child is in danger, an immediate intervention should take place to protect the child. However, in the majority of cases - this echoes much of what has been said today - there is an ongoing concern for the welfare of the child, and in these cases we should be empowering both the State and the family to work together to remedy the situation. We should be working to keep families together and if, after a defined period, remedy cannot be found, then the emphasis should move to the best interests of the child.

  I would like to note the proportionality test as set out in law in Heaney v. Ireland, which is as follows:

The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:—
(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible; and

(c) be such that their effects on rights are proportional to the objective.

This is very important for us to note.

  This provision also holds that the State will "supply the place of the parents". There has been some confusion and concern about what this means. To "supply", in the context of State intervention, will not mean in all cases that the State will replace or take over from parents.  The term "supply" also means to make available for use, to provide, to furnish, to equip, to make up for a deficiency, to compensate for or to serve temporarily as a substitute. In the majority of cases it means that the State will support the role of parents and families. Supplying can be in part; it does not have to be mean "replace". This provision shifts the trigger of intervention from a consideration of the reasons for failure of the parents to a consideration of the impact of the failure on the child. As my colleague Senator Mullen is aware, I looked at the wording closely and considered tabling amendments. I cannot support the amendment because we cannot just look at the interplay within the sentence; we must look at the provision. The term "proportionality" is extremely important. I have a difficulty in that the threshold will be raised if we put in “and significantly”. Having taken advice overnight, I have concluded that the interplay between "prejudicially" and "significant" would increase the threshold to where it currently is. What we are trying to do is to make a level threshold for all children and all families so that we have the same threshold for intervention. In this way we can, I hope, support families. In exceptional cases the State would intervene to remove a child, but they are exceptional cases, and that is where we need to keep everything in balance.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I agree with Senator van Turnhout. I also checked about the inclusion of the words “and significantly”. It would raise the bar extremely high. It would cause more problems than it would solve in the sense that the bar would be set so high that the courts would find themselves again in a stranglehold such as that to which I referred yesterday in the context of Mr. Justice Lynch in the JH case. He was trying to look at the situation through the eyes of the child as opposed to the eyes of the natural parents and the eyes of the adopting parents, and when he came to his conclusion based on examining the situation through the eyes of the child, the Supreme Court allowed the appeal of his decision. Likewise, if one adds the words “and significantly” it would cause problems for the courts because the effect on the child would have to be of major consequence and would cause problems in the sense of the courts stepping in. Senator van Turnhout made a submission on the word “proportionate”. The section overall does deal with all of the circumstances, taking into account the parents but also the child. It makes sure that if there is to be a level of involvement by the State, it is in a measured way and that it is not overly intrusive in dealing with the matter. The section as drafted is the appropriate way of dealing with the issue. I support the Bill as is. I am not in a position to support the amendment tabled by Senator Mullen.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik This is a valuable debate to have. I thank Senator Mullen for tabling the amendment because it enables us to tease out, as Senator van Turnhout has done, the entire wording of the provision, just to reassure ourselves that the appropriate balance we all seek to make is met. I am reminded of Mrs. Justice Denham’s words in the PKU case, where the authority of the parents was recognised by the Supreme Court. She said she had a fear of stepping towards the brave new world in which the State always knows best. Clearly, we want to ensure that the State will only intervene in exceptional cases and then only by proportionate means. The inclusion of those two phrases "exceptional cases" and "proportionate means" should address any concern that the test is set too low by the use of the words “prejudicially affect the safety and welfare of children”. I do not see the need to include Senator Mullen’s proposed extra words. Significantly, I share the concern of Senators Burke and van Turnhout that it might in fact set the bar too high.

  From my own experience in Dolphin House and in the District Court in Dublin in these cases, the State’s intervention is not limited, as is often assumed, to the full care order. The Minister referred to the State’s increased investment in family supports to ensure that a full care order is the last resort and the exceptional case. Even in cases in which children are admitted to care, on which the Minister gave the figures, in many cases interim care orders are granted. They may be renewed for periods of weeks, but the child may well be returned to the parents. There are many cases, even when genuine concerns are raised about the safety and welfare of children, in which the approach taken is to support the parents, provide parenting classes and counselling, and in some cases provide residential placements for parents and children together to ensure that the family will be kept together and that the full intervention or care order will not be necessary. There is a greater understanding now of the need to support parents and to ensure the child can stay in the family as far as possible, rather than having the State replace the parent, as is the norm in the case of a full care order.

  When we read the provision we should not assume the State's intervention consists of the child's entry into care. We should instead note that the phrase “by proportionate means” refers to the wide range of measures available to the courts in trying to support children and parents to ensure that the welfare and safety of children will not be prejudicially affected. The Human Rights Commission’s helpful observations state that the wording should also ensure families are properly supported to allow them to effectively nurture, care for and bring up their children with the full support of the State. That is correct. The State intervenes to support parents; as Senator van Turnhout has pointed out, the word “supply” includes family supports. It does not necessarily mean only care orders.

  Yesterday in the House we spoke about the Baby Ann case, which is an important case in this context, and I mentioned that Vincent Browne had misread the judgment. I am pleased to see he commented on that in his article today and referred in particular to some of the more significant judgments, such as that of Mrs. Justice McGuinness in which she referred to her difficulty with the decision she felt she had to come to. In this carefully crafted wording we are reaching a better balance than is currently the case. Looking again at the judgment in the Baby Ann case, we are reminded of the need to strike a balance and to ensure the State’s intervention is proportionate and limited to exceptional cases. That balance is achieved in this wording.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane I have much sympathy for the Minister’s position of having to formulate words that strike a balance. This goes back to the previous amendment as well. I accept that when we propose to add a formula of words - whether a number of words or one word - to the amendment, there are repercussions and issues that must be examined and teased out. It is important that we are having the debate. While additions might be well intentioned by those who propose them, they can, as the Minister said, have unforeseen consequences. I agree with the Government representatives and Senator van Turnhout. I listened to Senator Mullen’s contribution and I have a question for him. It is important that the people who propose the amendment tease out exactly what they mean. I share the view that this could potentially increase the threshold for intervention. I fully agree with Senator van Turnhout: the word “proportionate” is important in the context of the overall provision. It is sufficient for me not to support the amendment but to support the provision as it stands.

  Semantics are a huge part of the debate, as is the case in any referendum when people have different interpretations of what an amendment contains. We must be clear on what we mean. My question for Senator Mullen is this: if we include the words “and significantly”, how do we define “significant”? What does a court use as a benchmark for determining what is significant? It would raise serious problems for the courts. This is why I find it difficult to support the provision. Perhaps Senator Mullen could respond. We must be careful.   One of the reasons we have not tabled many amendments is that we are very conscious of the work the Minister had to do in striking a balance. We will have arguments around the Government amendments but I would be very concerned about putting words into the amendment that could have consequences for legal people and those in the courts who have to interpret what we mean. That is why it is important that we, as legislators, know what we mean when we wish to put into the Constitution words such as "and significantly". What does that phrase mean? What is the benchmark? How should it be interpreted? Those might be questions for Senator Mullen. If he gets an opportunity to return at some point he might be able to expand on or explain the point.

Senator Averil Power: Information on Averil Power Zoom on Averil Power The Minister is very welcome to the House. I support comments made by other colleagues in that I consider this wording as a very careful balance. We must all be conscious of the fact that it has been worked on at Cabinet level only during the past year and a half. It is very similar to the wording agreed before the election by the previous Cabinet which was brought to that point after more than 60 meetings of an all-party committee. By the time legislation comes to this House it has gone through a most extensive process. I refer in particular to the number of meetings of that committee, on a cross-party basis. I would have confidence in generally accepting there is a reason for the wording being the way it is, and that it is appropriate in terms of the balance that has to be struck between conflicting rights.

  It is significant that Article 41, which relates to the family, is staying put. It will leave in place the presumption that the child's welfare is best met in his or her natural family but with the new Article 42A we are putting in place a system by which that presumption can be displaced, by giving the child clear rights in his or her own respect. It is important to note it will be displaced only in exceptional circumstances and the wording, as it stands, makes that very clear. It is also clear that this will only occur when the child's welfare and safety are prejudicially affected. The word "prejudicially" is strong enough. The fact is we have two articles which will have to be balanced against each other, and our courts in general ensure that when they are weighing up conflicting rights they have regard for proportionality. The safeguards are already in place in that wording and for those reasons I support the amendment.

  I have certain concerns. Perhaps Senator Mullen would like to come back and explain how exactly this proposal would change the threshold in question. I would have concerns about the uncertainty in that regard. If this is the appropriate threshold, as decided on by the Government and the all-party committee, I would like to know what the addition of the word "significant" means, and in what way it would make that change. The last thing we need in this area is uncertainty; that is why we are here. We have had problems in not being clear about children having rights in their own respect. They are protected as individuals under Article 40.3 but we have never had clear protection for the child, as a separate individual in his or her own right, with a separate constitutional provision to cover same. The last thing we need, therefore, is uncertainty.

  In discussing this section, I point out that the wording of the referendum has obviously been considered very carefully and I support the referendum 110% because it will give children clear rights as individuals and reflect the value we should have put on children's rights a long time ago. It will reflect the value we as a society place on children and show we want to ensure they are protected from harm even when unfortunately that harm arises, in exceptional cases, in their own home. However, although the legal framework will be put in place by this amendment, I am concerned to ensure that the right procedures and supports are in place on the ground. The point was made already in debates on the referendum that there have been cases of failure in the past where the HSE did not act in circumstances in which the law was not the obstacle. We need to be very conscious of that and the fact that although this referendum is very important, it is only one small part of the solution in terms of child protection. The Minister addressed that point. I assure her of the support of this side of the House as she fights at the Cabinet table for resources for child protection and support services for children. That is how we will ensure the aspiration of the Constitution and that the legislative framework will mean real protection for children on the ground. That is the important part when this referendum goes through, as I hope it will. It is significant that it has support on an all-party basis. I am sure all Members of this House will campaign for it but that is only the start of the process of improving children's rights in this country. We must move towards implementation and proper resourcing of services.

Senator Mark Daly: Information on Mark Daly Zoom on Mark Daly The thirty-first amendment to the Constitution affords rights to children and gives them protection that heretofore has often been sadly missing in our society, as the Minister well knows. The amendment gives effect to the line in the Proclamation which states we should cherish all the children of the nation equally. It is appropriate also that the date for the referendum is the birth date of Pádraig Pearse, one of the signatories of the Proclamation which remains timeless and universal in its aims and objectives.

  I wish the Minister well in the referendum. She has put in a great deal of hard work on this with her officials in recent months and although we are debating the wording, the objectives and the spirit of the amendment must be welcomed. It is great to see such cross-party support for the thirty-first amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh Senator Power has mentioned this is only the start and she is right. Wording in the Constitution will probably not change the position of children substantially. What we do on the ground and attitudinal changes will make the most significant difference. Senator Power also referred to the all-party committee. I commend the Minister for changing the wording proposed by the committee. She has improved the situation with the new wording.

  The one area that struck me when I read the published wording was the next clause, also referred to here, namely, that we had moved from the physical or moral reasons, so to speak, to more general duties. That struck me as an area that might be tilting the balance one way or the other and I put that question to the Minister. The debate is very good. I have no difficulty with the implementation of what Senator van Turnhout describes as the modus operandi but we must look at the wording in question. In going back over what has happened up to now, Senator Bacik was not particularly pertinent in that we are now putting new wording into the Constitution which will be interpreted, as the Minister stated, by our Judiciary and this may change the manner in which these cases are considered.

  I wish to tease something out with the Minister. I am not sure whether the phrase "and significantly" tilts this issue back the other way too much. As it is really a legal question, I must defer to legal minds on it.

  The debate has reawakened some small concerns I had with regard to the wording, for example, parents "failing in their duty towards their children". This phrase is qualified by "the safety and welfare of any of their children". Growing up as a young garsún in the 1950s in the house where my father had died, I remember being acutely aware that children in those circumstances were, to some extent, exposed to the possible intervention of what was then called "the cruelty man". Many people who grew up in that era will be familiar with that term. Much would have related to the inability of families to provide for their children in the way they would have liked because they did not have the financial resources. It was common in those days for people to borrow sugar, butter or whatever else before the end of the week. Those memories stay with one and I would hate to think that in the current climate where people are seriously financially challenged, this could in any way be interpreted as an issue on which the State might interfere when families may be going through difficult financial situations.  I would certainly be concerned if this could in any way be interpreted as an area in respect of which the State could interfere in circumstances where families might be experiencing financial difficulties. This is, therefore, a matter which could be teased out further.

  There is a second and more general aspect relating to this issue. I refer to the provision of social services and to specific individuals who might be wedded to particular ideologies which might not be pro-family in nature. I could recount one or two instances where matters of this nature would have emerged as reasons specific actions followed certain interventions. I am concerned about this issue in general. What precautions will be put in place in respect of the type of eventuality to which I refer? Many people have spoken about the primacy of the family, about the right of a child to have both a father and a mother and about trying to keep that unit together in so far as is possible. I accept that in exceptional circumstances, and where all else fails, the best interests of the child must absolutely come into play. Nobody wants obstacles to be introduced which will prevent intervention in such circumstances. As a previous speaker indicated, however, we do not want to see busybodies becoming involved and making interventions which no reasonable person would make.

  There is a particularly fine balance to be struck in respect of this matter. I have not been completely persuaded by Senator Mullen. Perhaps he might seek to provide such persuasion when he makes his next contribution. I am concerned, however, that, in the context of the wording, the threshold may have been dropped just a little.

Senator Imelda Henry: Information on Imelda Henry Zoom on Imelda Henry While I do not agree with the amendment, I welcome the fact that we are engaging in such a good debate. Senator van Turnhout and I are members of the Joint Committee on Health and Children and I can inform Senator Walsh that the Minister keeps the committee up to date on her work on a regular basis. I have no doubt that when the referendum has been passed, the Minister will do whatever is necessary in the context of the provision of resources. There have been two positive developments in this area in recent times, namely, the appearance of the general scheme of the Children First Bill and the establishment of the child and family support agency, which will be fully operational in the new year. I know that the Minister will go into greater detail on this matter but it must be noted that after the referendum is passed, there will still be a great deal more work to be done. However, I have no doubt that the Minister is committed to doing that work and I have full faith in her.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank Senators for their contributions on the amendment. I am happy to give as much information as possible on this matter. I hope this information will be of assistance in the context of people understanding the approach we have taken to this article.

  My first point relates to children being taken into care. It is important to lay down a marker to the effect that the State is not rushing into taking children into care. There was a 3% increase in the number of children coming into care last year but this was in line with the increase in the population. By international standards, Ireland is quite low on the league table in the context of the number of children coming into care. People are not rushing to put children into care. It is something that happens late and in circumstances where families have not been able to look after their children where there are questions of abuse, neglect, incapacity to cope, etc. I intend to comment in detail on the criteria currently used in respect of this matter. I am sure the lawyers present will agree that there is no evidence of the Supreme Court micromanaging parental duties or rights. We do not have such a tradition in this country, in fact the position here is quite the opposite. That is an important point to make in order to provide something of a backdrop to this debate.

  Senator Walsh referred to the wording put forward by the Joint Committee on the Constitutional Amendment on Children, which was to the effect that "Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means ...". I examined that wording very carefully in order to establish how we might deal with the formulation. Some might argue, as did Senator Walsh, that the threshold in this regard is too low, while others might say that the threshold is correct and that it reflects the point at which we should intervene. I have chosen to take some of the best parts of the wording brought forward by the joint committee and, like the latter, I have chosen to leave Article 41 in place.

  In the interests of providing a background to the discussion on this matter, I wish to make a number of points regarding our existing constitutional and statutory framework. That framework provides that the State may intervene in cases where children are not receiving adequate care and protection. Some people are approaching this debate on the basis that we do not already have legislation in place which deals very clearly with many of these issues. As Senator Bacik indicated, that legislation is being applied in the courts on a daily basis. For example, section 3 of the Child Care Act clearly delineates how the State may intervene. It also sets out the circumstances in which such interventions can take place and establishes that the welfare of the child is the paramount consideration. This is, however, qualified by the requirement to have regard to the rights and duties of parents, recognising that it is generally in the best interests of a child to be brought up in its own family. That is the starting position.

  The amendment, in its totality and in the context of the other provisions in the Constitution, makes clear that there is a range of rights to be considered in these cases. No one set of rights trumps all others. At the core of our discussion is the question relating to what are the balances involved.

  I reiterate that there will be no change to Article 41. The presumption will continue to be that the best interests of the child are best met within his or her family. That is an important point. The rights of the child are expressly recognised in the proposed new Article 42A. The constitutional recognition of the principle of best interests, contained in the proposed new Article 42A.1, will operate as a sort of counterbalance against other constitutional rights. We are not concerned here with a strict hierarchy of rights; we are, rather, concerned with the ability to balance those rights. When one thinks about it, that is precisely what one would want to see happen in the courts when key decisions relating to children's futures are being made. Such decisions relate to matters including where a child will live in the future and they also encompass issues such as parenting, adoption and access. These are absolutely key decisions, regardless of whether the child is five, ten or 15 years of age.

  The provision relating to best interests is mandatory because the word "shall" is used. The provision sets out that the Oireachtas shall legislate to provide for the best interests of the child being of paramount consideration in determining certain proceedings. The courts will, when applying this principle, have regard to the constitutional framework and all of the rights contained therein, including those of the family. We are referring here, therefore, to the constitutional rights of parents. The overall impact will be to ensure that in the future the best interests of the child must be considered, having regard - but not being subject - to the constitutional rights of parents. This is a very careful counterbalance. I reiterate that the basis of the policy intent in framing this article was to ensure there will be a more child-centred approach to decision-making in these areas.

  I am sure Senator Mullen will probably have comment to offer in this regard but I thought Archbishop Martin put it very well when he stated-----

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I also thought he put it very well.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald -----that it was long past time we highlighted the rights of children . He also referred to the type of balancing we are seeking to bring about.

  Senator Mullen referred to physical and moral considerations. As Senators are aware, the term "physical and moral reasons" is contained in the existing version of the Constitution. If we included reference to physical and moral considerations in the wording to be put to the people in the referendum, I am of the view that the ordinary - as opposed to the constitutional - meaning of that would be quite difficult to explain. What we have done is recast the article to reflect concerns which are more relevant and which really capture contemporary thinking with regard to children.  The aim is to highlight the impact on the child. The focus is not on the failure of the parents but rather the impact of that failure on the child. The joint committee report did not include the phrase, "physical and moral" either but I have included a section that looks at the impact on the child. This is very appropriate.

Under Article 42.5 the court is not only obliged to satisfy itself of the existence of parental failure but must attribute it to either a physical or moral failure. It could be that due to a physical disability the parent did not have the capacity to care for his or her child, whereas a parental failure that could not be attributed to a physical failing was a moral reason. I remember someone saying to me that in the court decisions where physical or moral failure was used, the headings of physical or moral were used to encompass many aspects. The proposed formulation is a more straightforward one which can take account of physical failure. It is a question of what is meant by "moral" in the contemporary context. This could have given rise to much debate that is not relevant to the key points.

I emphasise the key intent in order that people will understand the change. The key intent of the policy is to move to a more child-centred focus within the constitutional provision relating to State intervention in the place of parents. This demands a change in the orientation of the provision around the needs of the child and in that context the impact of the behaviour, whether blameworthy or not, on the child. Particular care is taken to retain the threshold for intervention. In that respect, "prejudicially affected" is seen to be very much in line with the provisions of the Child Care Act 1991. The focus of the policy rationale is to encourage judicial decision-making in which the focus for the judge is on the effect of the behaviour on the child rather than the culpability of the parents. I am satisfied that the focus on the nature of the impact of the failure is an important alternative qualifying aspect of the provision. An important point is that it is further qualified by "in exceptional cases" and "proportionate". One must consider the combination of words. For example, the words, "prejudicially affected" cannot be taken alone. Any court or judge will look at "proportionate" and "in exceptional" and "prejudicially affected". It is important, in my view, to look at the whole range of wording in that provision. It is not simply a question of removing one wording. The proposed wording carries forward the recognition of the constitutional status of the family while taking a child-centred approach. There will be a series of criteria. The failure of parental duty towards the child must exist, regardless of marital status. Any failure must involve the likelihood of harm or risk to the child's safety or welfare. I emphasise the word, "likelihood" and it is to such extent that the safety or welfare of the child is likely to be prejudicially affected. I refer to the term, "proportionate" which means that the actions of the State must be in balance with the harm or risk to the child that needs to be addressed. The actions which the State can take must be set out in law and there must always be due regard to the natural and imprescriptible rights of the child. These are a series of applications that will have to be taken into account and no one is taken on its own. This will be the case in the courts.

I will expand on this point in the interests of clarifying the policy. Under the proposed Article, as drafted, the State may only intervene in exceptional cases. This makes clear that the bar for intervention is high and that the State cannot intervene where the concern for the child's safety or welfare is not a significant one. In that regard, the inclusion of the word "likely" clearly indicates a well assessed and evidenced approach is needed to underpin action of the kind comprehended in the section. To further qualify this provision, inserting "and significantly" would lead to uncertainty in terms of its interaction with "in exceptional cases" and the relative nature of the term to be inserted.

In considering the proposal I have to bear in mind the core objective of protecting children and to ask myself if the addition of the words "and significantly" to the existing requirements for action under the provision, would best serve the attainment of that objective. The question I have to ask when I examine the Senator's amendment is whether it adds to that objective of protecting children.

I refer to the detailed process relating to the application for and the making of care orders for children, which I will summarise briefly for the information of the House. I reiterate that there is no rush to take a child into care; it is a last resort. It arises where social workers and others, including gardaí, doctors and teachers, are sufficiently concerned regarding a child's welfare and safety, and where efforts made by the HSE to support the parents - in the future this will be the role of the new child and family support agency, as mentioned by Senator Henry - in providing a safe environment for the child have been unsuccessful. That is the point at which an application can be made to the courts for a care order.

I reiterate the point that last year, 1,500 children who had been sexually and physically abused were brought into care. That is a significant number of children and those are the statistics from 2011. In such cases, the HSE, through the delegated authority of the social worker, must give evidence of the neglect or abuse that has been observed, the efforts made to support the parents and the risk that the situation will continue unless there is intervention by way of a court decision. I really wish that we could hear more in public about some of the family law cases because people forget that this legislation is in place and that these cases are being heard every day in our courts. The judge makes a determination based on the evidence presented. There were some questions yesterday as to how it can be assured that the views of the child can be represented and the guardian ad litemsystem is one way. Senator Norris has a particular interest in this matter. However, that system needs a more national approach and I will be working on that. It has been too ad hoc and it needs a further development. Legislation will be required.

For the information of the House, in 2010, 55% of children in care were subject to an emergency care order, an interim care order or a care order, and the remaining 45% were in care under a voluntary agreement. There are quite a number of families who voluntarily request support from the State and who are unable to continue to care for their children. It is very difficult for people to understand this. Senator Mullen made the point that the lens through which we discuss this provision is the lens through which we view the disadvantaged or vulnerable children and we have to remind ourselves that there have been dramatic changes in Irish childhoods and that the vast majority of Irish children have good childhoods. Our attitudes to physical punishment and to parenting have changed. I refer to the great care and love given by the vast majority of parents to their children. It is easy to forget this fact when discussing the more vulnerable group of children. The Senator is right to remind us of it.

The proposed amendment, as drafted, is measured and effective in the protection of children. I do not intend to accept Senator Mullen's amendment and I hope he understands the reasons I will not accept it.  I have tried to clarify the reasons the Government did not retain the wording proposed by the committee but instead sought to develop a formulation that would reflect the types of balance to which I referred. There is a balance there in the imperative to protect children's rights while recognising that children are brought into the care system only in exceptional circumstances. Of the 1.2 million children in the State, 6,000 are currently in care, with 2,000 of those being in the system for more than five years. In other words, taking children into State care is an exceptional course of action and the State's actions in this regard must always be proportionate.

  The need to improve child protection services, as raised by Senator Averil Power, is a matter for debate in its own right. I accept there is a great deal of work to do in this regard, whether in legislative terms or in terms of the quality and consistency of services we would like to see, and it will not be done overnight. It is important to note that when children are taken into care in this country, they are brought into a family care setting. It is not really a question of whether one can trust the State. In fact, 92% of children who are taken into care are entrusted to foster families. I accept, nonetheless, that there is an ongoing standards issue in regard to foster care which must be addressed.

  I hope I have given Members a clear view on how we arrived at the proposed wording and the balances we have sought to include. As I said, our focus moved more towards the impact on the child as opposed to the failure of the parent. In that context, the phrase "prejudicially affected" must be seen in the context of the clear statement in the proposed article that any action by the State will be "proportionate" and apply only in "exceptional" circumstances. I assure Members that there is no evidence in recent times of the State seeking to micro-manage families.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I thank the Minister for her comprehensive response and my colleagues for the points they raised. I am very grateful for the tone of the debate. With all that has happened in terms of the failure to protect children in our society - failures by the State, by religious institutions and within families - the topic can sometimes have a very toxic feel. That is a sad reality in our national life. The danger is that this can have a chilling effect, when what is needed is for us to interrogate what is proposed, having regard to the best interests of everybody in our society.

  Everybody understands that we are all in the same boat in terms of ensuring the State is in a position to intervene when it is appropriate to do so. As the Minister rightly observes, while the State is the agent of intervention, that intervention takes place at many levels. Senator Ivana Bacik also spoke about this, and it tallies with my own experience during a period working in the family law courts where I saw the panoply of responses and engagements. There is sensitivity in any debate on these issues as to what is the appropriate approach to take and the correct language to use. One certainly does not want to give the impression of being in any way blasé about any situation in which a child's welfare might be affected. That said, we are all human beings. Good people sometimes fail and they sometimes do so in a way that should not attract the intervention of the State.

  Like Senator Jillian van Turnhout, I am a great fan of that extremely important word, "proportionality". The inclusion of the reference to "proportionate means" indicates to me that even if it were the case that the State could intervene on the slightest pretext, it would then be circumscribed in terms of what it could actually do. That is very positive. However, we are talking here about two stages of intervention. Test one relates to when the State may intervene, while test two is concerned with how it may intervene. The latter is governed by the word "proportionate", but there is a separate and prior question related to the "when" - that is, the circumstances in which the State may intervene.

  On the subject of proportionality, I understand that one of the formulations that was considered was a reference to the State "supplementing" the place of the parent. This, again, was an attempt to address those scenarios, as referred to by Senator Bacik and others, in which a full care order is not appropriate but there is a need for agents of the State to approach families in particular situations and offer assistance and support in various ways which we would all find desirable. I agree with Senator van Turnhout, as I have understood her, that the requirement for a State intervention that falls short of a full care order - an interim or intermediate level of intervention - is encompassed within the notion of proportionality.

  The nub of the issue is the meaning of the word "prejudicial" and I remain of the view that there is a certain vagueness in the provision in this regard. The Minister rightly argued that the phrase "for physical and moral reasons" does not really resonate, as there is a difficulty in distinguishing between its constitutional and ordinary meaning. It is something of a head-scratcher and raises the question of whether there are other types of reason - perhaps accidental reasons - which are thereby excluded. I agree with the Minister that a recasting of the wording with a view to focusing on the impact on the child is the sensible approach to take.

  The same test applies, however - I am attempting here to address the question raised by Senators David Cullinane, Averil Power and Jim Walsh - in the context of the notion of "prejudicial" effect. If one were to ask ordinary people in the street - although I have some legal background, I number myself among this group - what they understand by somebody's welfare being "prejudicially affected", many of them would be scratching their heads. Does the Minister understand the phrase "prejudicially affected" to mean negatively affected, or is it more or less than that? This is the crux of the matter. In response to Senator Cullinane's point about the effect of including the word "significantly" here, I can only say that there can never be certainty in terms of how words are interpreted. The courts will always have to interpret what is in front of them and apply the test of the reasonable person. My view in this instance is that the reasonable person would have a much clearer idea of what is meant by a person's welfare being "significantly affected" as opposed to "prejudicially affected". "Significantly" is a word that recommends itself to ordinary human understanding of situations in a way that "prejudicially" does not. I return now to the question I raised in my first intervention. Should the State be in a position to intervene in situations in which a parental failure is not likely to affect a child's welfare significantly? I expect that the ordinary person's answer to that question would be "No" - that if the effect is not significant then the State should not have a role, proportionate or otherwise. However, it is with greatly mixed views that I am thinking about these issues.

  Colleagues will be aware of a recent advertisement relating to alcohol abuse. I am always beating the drum regarding the need to change our thinking completely on the issue of the abuse of alcohol and the impact it is having on families, on children's futures, on the health care budget and so on. All types of issue are tied up, fite fuaite, with the problem of alcohol abuse in our society. The advertisement to which I referred asks parents to consider the question "Is your drinking affecting their thinking?". In other words, it invites parents to reflect on the example they are giving. The misuse of alcohol is an issue that encompasses a huge number of parents in this country. It is fair to say that the safety and welfare of children, both present and future, is affected on an ongoing basis by attitudes to over-consumption of alcohol and the association of alcohol with significant events such as First Holy Communions.

  There are all types of ways in which people who would describe themselves as good parents, and who would be considered as such by others, are nonetheless failing in their duty towards their children. The question I ask - I am not sure I know the answer - is whether this type of behaviour on the part of parents is something we would intend to be encompassed within the constitutional provision.  In this area, should we regard the State as considering itself to be constitutionally empowered or even mandated to "supply the place of the parents" to some proportionate extent? On balance, my answer is "No". While I am in favour of providing all sorts of education programmes and believe there is a significant need for civil society to engage in this area, I am not sure it is the State's role to see itself as interventionist in this constitutional manner when cases of this nature arise. It is the job of Members to think about these issues and the future application of these constitutional provisions.

Senator Power and others correctly noted the hard work that has been done, as is undoubtedly the case. All of us have kept an eye on this matter and responded at different stages. We have reached what may be described as the penultimate phase of the vetting of this constitutional proposal, the ultimate phase being that given by the people on referendum day. It is in that context that we must do our duty and re-examine the proposal.

Having regard to the fact that good parents sometimes fail in the way I described, many people would consider that failure which falls short of being significant should not be the basis for a constitutional empowerment of the State or its agents to intervene in any way. I will reduce the concerns I am expressing to a core question. What does the word "prejudicial" mean in this context? Does the notion that the safety and welfare of the child would be likely to be prejudicially affected have the effect of raising, lowering or maintaining the threshold that applies in the existing constitutional position?

It is always difficult when one tries to reduce debates to core questions. While I am grateful, as I stated, for the Minister's comprehensive answer, it would be helpful to hear a little more on what she considers to be the meaning of the word "prejudicial" and what will be its effect. We are all ad idem on the desirability of levelling the scope of the State to intervene as between marital families and children in other circumstances. The question that arises, however, is what is the threshold at which the State may intervene. The nub of the issue - the key to the riddle, as it were - is identifying what the phrase "prejudicially affected" means? Does it have the same meaning as the phrase "negatively affected" or does it have a greater or lesser meaning than that? Does the Minister believe that in introducing this phrase she is raising or lowering the threshold, in other words, making it more or less difficult for the State to intervene, or is she leaving the position pretty much as it is, as compared with the existing constitutional wording?

Senator David Norris: Information on David Norris Zoom on David Norris I am grateful to have an opportunity to contribute in this debate and strongly regret that I was not in a position to speak on Second Stage. With no disrespect to the House, the reason was that I had been invited to make a contribution to the annual conference of the International Bar Association. I considered it useful for practitioners of law to hear from someone who, even in a minor way, plays a role in the development of legislation, as Senators are doing today. As the Minister will know from her time in the House when she was leader of the Opposition for a time, the Seanad plays a useful role in the legislative process.

  I am profoundly grateful, both as a Member of the Oireachtas and a citizen, that this Minister is in charge of the referendum. She gave a very good demonstration of precisely why she is the right person for this role in the answer she provided and to which I was privileged to listen. It was detailed, clear and coherent and was given without reference to notes. She is clearly in charge of her brief, knows what she is talking about and deals in a courteous and civilised way with what might very well have been a contentious matter in the past. I also pay tribute to Archbishop Diarmuid Martin. It was extremely helpful of him to speak in a manner that suggested that in his view and from the point of view of the Roman Catholic Church, there is nothing dangerous in the proposal. He does not appear to have any difficulty in giving the proposal his general support. In the past, this section and the type of amendments we are discussing could have been explosive.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I remind the Senator that we are discussing amendment No. 2.

Senator David Norris: Information on David Norris Zoom on David Norris I am aware of that. The amendment deals with the safety and welfare of the child and the intervention of the State, which is exactly the point I am making. I thank the Acting Chairman for-----

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan The amendment refers to page 6, line 10.

Senator David Norris: Information on David Norris Zoom on David Norris Yes, that is exactly what is in line 10 on page 6.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I remind Senators that we cannot have another round of Second Stage speeches.

Senator David Norris: Information on David Norris Zoom on David Norris I did not make a Second Stage speech.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I appreciate the point the Senator makes and ask him to continue.

Senator David Norris: Information on David Norris Zoom on David Norris I will read the relevant line for the Acting Chairman.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan That is not necessary.

Senator David Norris: Information on David Norris Zoom on David Norris It reads as follows: "In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents" This provision would have been intolerable in the past. Even during my time in this House, the Stay Safe programme was attacked on the basis that even protecting children against sexual abuse within the home amounted to an interference in the family. This provision is terribly important because there is a major gap in this area. The important aspect of the provision is the phrase "the best interests of the child shall be the paramount consideration". The welfare of the child must be paramount. While a family is wonderful when it is good, there are cases where children are defenceless against a dysfunctional family.

  I was pleased to note the Minister's reference to the position as regards the guardian ad litem system given the role the House has played in this matter. I expected the system would have some role to play. In a shocking case in England, a young girl who was returned by a local authority to her family where she was being abused ended up meeting her death. There is, therefore, a role for the State. It is vital in these circumstances that whatever provision is made by the State is adequate and significantly better than the circumstances from which the child is removed.

  This section grants the State the power to intervene. It is most regrettable, as we have learned, that institutions of the State have been defective historically and this has had serious consequences for children in their care. I hope and believe we have learned from that. The guardian ad litem system must be financed because it has not been properly funded. This is a terribly difficult period in which to seek additional finance for anything, even children who are often the most vulnerable in society. I add this important proviso.

  We would all have a better understanding of the position, precisely as the Minister says, if a mechanism were in place whereby we would come to understand the types of cases that are explored or types of judgments made in the family court. Cases in the family court which involve children are heard in camera. I am not sure how to resolve this issue but it would be a good public service if we had access to this type of information because it would inform our discussion of this delicate matter.

  I listened with great interest and respect to Senator Mullen. That Senator Mullen, who is probably closer to these matters than I am, referred to the role of alcohol in families, an issue with which I am familiar having spoken about it in the past, shows what a complicated society we live in. Alcohol can be a threat to children. The Senator stated that alcohol is associated in a significant way with First Holy Communion. It is a paradox that a spiritual event and religious ritual that should be a celebration has become corrupted to a certain extent and I am glad the church is addressing the issue.

  The Minister is much more capable than I am of answering the question posed by Senator Mullen on the use of the word "prejudicially" as opposed to "significantly". The reason I am satisfied with the current wording is that it is surely a matter of significance if the safety or welfare of a child is prejudicially affected. It may not be necessary to include the word "significantly" because if the safety and welfare of a child are prejudicially affected, what could have greater significance? I am not persuaded that the inclusion of the word "significantly" is necessary. The current wording works because the word is included by implication.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Before calling on Senator Power, I must remind Senators we are on amendment No. 2 to the Schedule and whether the word "significantly" should be added after "prejudicially".

Senator David Norris: Information on David Norris Zoom on David Norris I hope that is what I said.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Yes, the Senator did at the finish. I call Senator Power and hope she can be as brief as possible on the net points.

Senator Averil Power: Information on Averil Power Zoom on Averil Power I agree with the point the Minister made about the voice of the child, which is a significant issue. I welcome the insertion of the new provision that the views of the child will not only be ascertained during judicial proceedings but will be given due weight. Often the courts listen to what children have to say but there is little evidence their views are considered or given any real weight. In one of the leading cases on child abduction, the D and D case, Mr. Justice John MacMenamin stated once the child has been given the opportunity to be heard, then the court’s obligation is satisfied. Accordingly, it is significant the words “due weight” have been inserted.

  The Minister stressed the need and importance of listening to children. She also referred to the guardian ad litem process and it is important proper national procedures are put in place in this regard. In addition, proper national guidelines must be in place to ensure children are listened to. Standardised assessments have been recommended for ascertaining the weight given in individual circumstances. Is that a decision for a judge who is not a child psychologist? Will there be standardised methods to give guidance to the judge and other parties involved in a case? It is important to have education programmes for the Judiciary and lawyers regarding these issues.

  It is also important to ensure when a court decides not to go with the wishes of the child – it could be in a divorce case in which the child has been coached by a parent – that the judge gives his or her reasons. It is essential to the success of the referendum to ensure we have effective procedures not just in law but in the courtroom to ensure children are listened to.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Again, a contribution that was slightly wide of the amendment. I want to hear Senators argue whether they want the word “significantly” added after “prejudicially”.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen That was an excellent contribution on the section.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh I do not have the legal background of some of my esteemed colleagues but I raised the issue yesterday of children in direct provision. The section asks whether the parents have failed in their duty towards children. There are quite a number of children in direct provision who do not have their parents with them and are left to their own means within the system. Will the Minister clarify where they would stand? For example, can the State step in and take guardianship of a child in such a position if it feels there is a danger to his or her welfare, be that from sexual predators, social issues, etc?

  I welcome the Minister stating yesterday that she felt the Irish Refugee Council report on direct provision needed to be acted upon. Prejudicially, people would argue that because of the situation of the State, they are in a prejudiced situation and it might have a different legal meaning. It would be an opportune time for the Minister to clarify the position of children in direct provision. The Irish Refugee Council is seeking legal advice around the whole referendum. It is important we get as much support as possible from all groups.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I call Senator Walsh to address the net points.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh The Minister has reasonably reassured some of my concerns. I was laying more emphasis on exceptional cases, however, as some sort of qualification in the failing in duties. I noted the debate concentrated considerably on the word “proportionate”. As I read it, proportionate means as provided by law. Does that not qualify it?

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan We are asking whether “significantly” should follow “prejudicially”. The Senator has moved on to the next amendment dealing with the word “proportionate”.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh This has all to do with this.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I am trying to keep it to the net point. Senators have been straying.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh The Acting Chairman came in late to the debate.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I took the Chair at 1 p.m. and have listened to a 45-minute debate which has contained much repetition.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh It is because part of the reason the Minister gave was that all the words have to be taken in context. The word “proportionate” was one the Judiciary would be taking into account when evaluating parents failing in their duties.

  My second question has to do with the word “duties”. The Minister’s predecessor, Barry Andrews, had done much preparatory work on the wording of the referendum. He used the word “responsibility” as distinct from “duty”.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan The Senator is going into a separate area. The amendment simply proposes to insert the word “significantly" after "prejudicially".

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh With the greatest of respect to the Acting Chairman, I have been here from the start and have followed the debate very closely.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Yes, but I have to chair this session. I want Senators to stick to the net point of this amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I am sticking precisely to it.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Please speed it up if you can.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh If one reads the amendment, it seeks to add the word “significantly”.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Correct.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh It has all to do with the phrase “failing their duty towards their children” to such an extent that the safety and the welfare of the child is likely to be prejudicially affected. It has all to do with that particular phrase that we are debating.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I do not know of what the Senator is arguing in favour.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh If you stopped interrupting me, I would have been finished by now.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan Please speed it up.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I do not see any significant difference between duty and responsibility. What was the reason for changing it?

  Much of this goes to the heart of the welfare of children. In a paper I prepared recently, I pointed to research which showed children in a married family fare better in a whole range of areas than children in other different family units. Senator Norris reminded me the greatest risk for a child is where his or her mother cohabits with an non-biological father. Statistics from research in Britain shows children in such a unit are 33 times more likely to be abused and 73 times more likely to suffer fatal abuse. If we are really committed to children, we need to underpin the married family unit between a man and a woman as fundamental to the welfare of the children. This debate has focused on that considerably.

Acting Chairman (Senator Paul Coghlan): Information on Paul Coghlan Zoom on Paul Coghlan I still do not know whether the Senator is in favour of the amendment. I call Senator Bacik who I ask to be as brief as she can on the net points.

Senator Ivana Bacik: Information on Ivana Bacik Zoom on Ivana Bacik Senator Mullen in his response to the Minister on the net point referred to his view that "prejudicially affected" is not enough without the inclusion of the words “and significantly”.  The important response to that is that the provision must be interpreted holistically, that "prejudicially affected" must be read in the context of the entire sentence, "where the parents ... fail in their duty ... to such extent that", in other words, that "prejudicially affected" refers to the extent to which "the safety or welfare of any of their children is likely to be prejudicially affected".

  I was struck by Senator Norris's comment that "safety" is a critical word too, that the safety of a child is prejudicially affected. Prejudicial affect, to answer Senator Mullen's point, has a clear legal and ordinary meaning of harmful. If the safety or welfare of a child is likely to be harmfully affected or harmed and the parents have failed in their duty to that extent, only then, in exceptional cases, shall the State intervene by proportionate means.

  The phrase "as provided by law" simply sets out how one would provide for the proportionate means. It does not qualify it.

  I would say also that the term "duty" is a recognised phrase in the Constitution, for example, parental duty in the education Article, Article 42. "Duty" is a clear word to be used. I do not see the need to include "significantly" in order to achieve the effect we all wish to achieve.

  I agree with Senator Mullen that it has been a constructive, thoughtful and reflective debate. I would say also that "prejudicially affected" also answers the particular concern Senator Mullen has that the State shall only intervene by proportionate means, and that fulfils the place he seeks to fill through the use of the word "significantly", which, with respect, is too blunt or too crude. The current more elegant wording fulfils the desired effect. If one looks at the proportionate means the State has available to it, it is not only the care orders and the Child Care Act, but the other provisions such as the supervision order in section 19 whereby a family is supported with regular visits and supports from the social services. It does not always mean the extreme of the final care order, as Senator Mullen acknowledged.

  The insertion of "and significantly" is unnecessary. In fact, it may prejudicially affect the balance that is sought to be achieved in this provision. What we have here is a clear outline of the test which should be applied in cases where the safety or welfare of a child is at issue.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I will address myself specifically to the amendment.

  The word "prejudicially" has a clear meaning, not only in constitutional law but in other branches of law. For example, the question, "Are my rights as a minority shareholder prejudiced by the actions of a company?", effectively means, "Are my interests harmed in any way by the actions?" By adding the words "and significantly" we would be raising the bar. I am not in favour of raising the bar. I think the word "prejudicially" is clear. I understand from where Senator Mullen is coming but "proportionate" is the key word in this section. It limits the powers of the State in taking specific action. In terms of the amendment, it is clear. "Prejudicially" is a clear legal word. Adding "significantly" would, first, cause legal confusion because "significantly" is not as legally understood as "prejudicially", and second, raise the bar, of which I would not be in favour.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank the Senators for their contributions.

  I have stated that the policy intent is not to change the threshold but to create a focus on the child. It must be clear as well, of course, that the framework of the Constitution must be further defined by law, and it is.

  I want to comment on this notion of intervention by the State as being something that, if one likes, happens in a way where the State jumps into action at a specific point. That is not the way to characterise this. It is much better to think of it as a continuum of risk for children whose welfare is being prejudicially affected, that is, being impaired or harmed in a detrimental or injurious way. The State, in intervening, has a range of options at the end of which is a court ordered care arrangement. The constitutional amendment allows that sort of breadth and flexibility which is required in these cases. Of course, we are absolutely assuming that it be proportionate and "to supply the place of the parents". It is absolutely clear from the phrase, as has been stated by quite a number of Senators, that the word "proportionate" allows the supervision order and the support to families proportionately as a first step. That kind of characterisation of the State suddenly moving in happens neither from a practice point of view nor legally. As I stated repeatedly, and on which case law including the major cases in this area would support me, the State does not want to micro-manage the kind of scenarios of which Senator Mullen spoke in relation to alcohol. With alcohol, the first intervention will always be about support around addiction. On the continuum of risk in relation to it which everybody would accept exists, where the safety and welfare of the child, because of alcohol, is impaired to the degree, the court would define in exceptional cases proportionate response bearing in mind that there are already the provisions in the Constitution that support the family. It is in all of those contexts that any intervention must be seen. Where the safety and welfare of the child is prejudicially affected, one is talking about proportionate response and one is talking about in exceptional cases.

  I remind Senators about the kind of definitions already in law for interventions under the Child Care Act. We are talking about constitutional change. When one looks at the kind of law that has flowed from our thinking on children, on examination of the Child Care Act, in the case of a care order which is the more extreme example, one is talking about where, on the application of a health board with respect to a child who resides or is found in its area, the court is satisfied of the following: the child has been or is being assaulted, ill-treated, neglected or sexually abused; the child's health, development or welfare has been or is being avoidably impaired or neglected; or the child's health, development or welfare is likely to be avoidably impaired or neglected. These are the stringent requirements on which the court, under the care Acts, must find and it is relevant to look at those in responding to the debate.

  It is implicit in this constitutional amendment - I want to make it absolutely clear - that the State will be far short of a care order in many situations. As I have stated, one third of the cases coming to the attention of the State are where parents voluntarily request support, and there is this continuum. The constitutional amendment reflects that continuum and that must be borne in mind.

  Early intervention and the early opportunity to support parents must also be contemplated because all the evidence is that early intervention is crucial to effective outcomes. Those are the kinds of balances we are trying to capture. I have outlined how the constitutional amendment has been constructed to provide that careful balance with respect to the rights of the child and families contained within the Constitution, and those rights are respected.

  As every Senator appreciates, the phraseology that we are using in this Article has been carefully considered. We have looked at and had to go through many alternative formulations. This is our very best thinking on how to capture the kind of essential balances of which we all have spoken today.

  Crucial to the final formulation - I do not want to repeat myself but I must make the point - was the retention of the words "in exceptional cases". That was not in the committee's formulation. I felt it was important to bring it in and then to combine it with looking at the impact on the child and the proportionate response. The three together achieve the kind of balance that most reasonable people would believe is necessary to protect children.

  I do not believe that the addition of a limiting criteria is required. In acknowledging that such cases are exceptions it is clear that these are cases where extremes of behaviour or failure have been reached.

  I am concerned that the addition of another term would potentially be overly restrictive and not to the benefit of children which is our prime aim. I question whether the wording Senator Mullen proposes adds to the protection of children. I would answer "No". We have the kinds of balances that are necessary. I would be concerned about including it at this point. It could be overly restrictive and not to the benefit of children.  I also think it has potential for creating conflict with the thresholds I have outlined in the Child Care Act 1991, thereby casting doubt on that well established Act. I have elaborated in some detail the clear safeguards that are in place. I am satisfied that the balance should not be disturbed and, for this reason, I am not prepared to accept the amendment.

  The Minister for Justice and Equality is studying the report on direct provision. Clearly these provisions apply to all children and will have to be examined down the line. He has expressed concern about some of the issues raised in the report and wants in particular to investigate the welfare of children in these circumstances. However, he believes that safeguards have been put in place notwithstanding what has emerged in the report. We have changed the way in which we deal with unaccompanied minors. They should not, for example, be subjected to direct provision. Unaccompanied minors should be cared for by foster families. I will follow up on the report and will liaise with the Minister for Justice and Equality on it.

  Senator Power referred to the views and voice of the child and asked how this might be implemented. Yesterday Senator Healy Eames asked about judicial training in this regard. It is correct that due weight should be given to children's opinions in addition to hearing their views. However, while the views of the child will be considered by the courts, they are not determinative because the courts will be obliged to take account of the child's best interests as the paramount consideration. We will have to do more work on this area if the referendum is passed. Practices in this area are developing internationally and I have had interesting conversations about how the courts are organised. The lawyers in the Chamber will be more familiar than me with the questions of how friendly the courts are to children and how easy it is for judges to hear the views of children given the physical set-up of some of the courts. The courts will have to take appropriate measures to ensure this provision is effectively and fairly implemented. We will probably need to develop family courts if we want to ensure cases are heard in an atmosphere that is less adversarial. It is not necessarily to the benefit of children that so many cases are discussed in the current context and the Minister, Deputy Shatter, has indicated his intention to move to a system of family courts.

  Constitutional change is just one aspect of change for children. We also have to consider the legislation that would arise from this referendum and the changes needed to the wider judicial system to make it a more child friendly and less adversarial place.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I do not intend to make an extended response. The Minister's response is very helpful and I note the comments of Senators Bacik and Hayden in particular as we attempt to put meat on the concept of prejudicially affecting the welfare and safety of children. This debate will be useful to people as they consider these delicate balances. We are speaking about impairing or harming children in a detrimental or injurious way. This is the likely outcome that triggers the State's intervention.

  I continue to believe that the word "significantly" would help in introducing clarity on the appropriate level for intervention. The Minister is right to ask whether this would enhance the protection of children. It should be noted that getting the balance right in such a way that the agents of the State do not feel empowered to intervene in inappropriate ways would help to protect children. The presumption would be that a child should be reared by his or her parents but in certain cases the mechanisms of care have to kick in. The word "significantly" addresses any possible fears that there may be, whether well founded or groundless, that vexatious or ill-judged interventions could take place on the part of the State. While I do not want to do anything that would interfere with current legislation we have to think about all possible scenarios. It is a tight call and I take on board everything that has been said about the impact of the word "proportionate". People might be concerned if the State was to supply the role of parent even in circumstances where a child is likely to be slightly impaired or harmed. If a parent fails to pick up his or her own child from school on couple of occasions -----

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout That is not intended.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen We are trying to put real life scenarios into play and ask how it would meet the test. These are the scenarios people will consider. At what stage is the State entitled to intervene in people's lives when they fall down? The best answer that the Minister has given is that while it may be the case that the State can intervene even in the event of slight failures, its response must meet the test of proportionality. I would not laugh at introducing real-life scenarios because this is what people think. Their fears can be reasonable or unreasonable but we should always try to address them. People know about situations where the agents of the State have intervened inappropriately. The ordinary parents to whom I have spoken sometimes regard themselves as failing, even though they are good people who are doing very well. I thank the Minister and my colleagues for their thoughtful contributions.

 Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.

  Amendment put and declared lost.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen Tairgim leasú a 3:

I gCuid 1, leathanach 7, líne 16, “Déanfar” a scriosadh agus “Go sonrach, déanfar” a chur ina ionad,

agus

I gCuid 2, leathanach 9, líne 15, “Provision” a scriosadh agus “In particular, provision” a chur ina ionad.

  I move amendment No. 3:

In Part 1, page 6, line 16, to delete “Déanfar” and substitute “Go sonrach, déanfar”

and

In Part 2, page 8, line 15, to delete “Provision” and substitute “In particular, provision”

This is my second and last proposed amendment and it addresses a simpler issue than the previous one. I seek to shore up the intended meaning of the provision on adoption. It is possible to interpret the test outlined in 42A.2.2° as differing in substance from that outlined in Article 42A.2.1°, which provides for the State to supply the place of parents in cases of parental failure. Article 42A.2.1° provides that in exceptional cases the State shall "by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child".  Those conditions are set out clearly in Article 42A.2.1°. On the other hand, Article 42A.2.2° provides that where parents fail,simpliciter, for a prescribed period, the child shall be placed for adoption without the consent of the parents "where the best interests of the child so require". One reading is possible that sees the best interest test in Article 42A.2.2° as unconnected to or with all that is provided for in the prior Article 42A.2.1° and, therefore, not circumscribed by the requirements of, in exceptional cases, and proportionate means and a designated level of failure. I propose we remedy the situation where there might be a doubt by simply adding "in particular" to the beginning of Article 42A.2.2°, in order to indicate that it is a further specification of the contents of Article 42A.2.1°, which I think is the Minister's intent. This would clarify that the tests and the standards articulated in Article 42A.2.1° also apply to Article 42A.2.2°. I do not think the proposal is controversial. It seeks to address a possible misunderstanding or ambiguity that is not intended. It should be noted that the words "in particular" already introduce the substance of Articles 40.3.2°, 41.2.1° and 45.2. This proposal is a small simple measure that would dispel any doubts about the meaning of the relevant provision.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke The word "parents" is used in Article 42A.2.1°. I raise an issue about-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That has nothing to do with the amendment.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke It is just in relation to the overall section.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We are on the amendment.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I am not in agreement with the proposed amendment.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I will allow the Senator to speak on the section when we come to it.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Article 42A.2.2° provides for making lawful the adoption of any child where the parents have failed for a period, as may be prescribed by law, in their duty towards the child or where the best interests of the child so require. Members will be aware that I have published the outline of the adoption legislation that will accompany the referendum. I did that because people would want to know that if they supported the referendum, what precisely we intend to do. When I came into office I said that I had to develop a policy and the legislation. Obviously adoption is a complex area and any changes have many implications for the current legislation. We have had to address those in the new Bill which I have published.

  The reference "where the best interests of the child so require" restates the statutory requirement under the Adoption Act 2010, the difference being that under the proposed new amendment, "best interest" is given a constitutional recognition which will give a greater weight to the principle when counterbalanced against other rights when the court is considering adoption under this provision. The provision should facilitate the enabling of legislation which will allow for the adoption of children in certain well defined circumstances, that is, where there has been a failure by the parents in their duty towards the child in a prescribed period. That is spelt out in the legislation. It will permit adoption without the necessity of proving that the failure by the parents amounts to total abandonment of rights that is likely to last until the child reaches the age of 18 years. We have the situation where many 17 and a half year olds who have been living with foster families are going into court and requesting that adoption certificate because they have been with the family for such a long period but, rightly or wrongly, the Health Service Executive or those working with it did not consider they would be able to rise above the test of abandonment right up to the age of 18 years. It addresses that anomaly and gives children in that position the opportunity to be adopted at an earlier stage. Nevertheless, it is still an onerous process, involving three years in care and 18 months in the care of the family who want to adopt.

  If the referendum is passed, a new adoption law will place an onus on the parents who have not had their child in their care for three consecutive years to satisfy the court as to there being a reasonable prospect of them resuming care of their child. It will provide for a shift in focus. One of the reasons is the failure of the parents to focus on the impact on the child and his or her best interests. I emphasise the constitutional rights of the parents have to be respected. Where parents say to the social workers, their child and the foster family that they want involvement, everything will be done to facilitate that involvement. Effectively, there has been a failure where parents are not involved, are not helping the child and where there is almost no contact.

  I am not absolutely clear on what Senator Mullen hopes to achieve by adding the words "in particular". It does not add anything to the overall meaning and legal effect of the provision. There is a possibility that the Senator is linking Article 42A.2.2° with the preceding Article 42A.2.1° in a way that is not intended which concerns child protection and State intervention. The effect of accepting the amendment would be to create an impression that adoption is the natural next step to a child being taken into care, which is not correct and does not reflect well-established public policy in this area. Many children come into care for short periods and return home. There is a variety of ways in which children and families use the care system. For those reasons it would not be helpful to accept the amendment. However, the Senator makes the point that Article 42A.2.1° and Article 42A.2.2° are linked and that is the reason they are in the same section. Failure is a requirement in the case of adoption of children by foster parents or others where parents have not consented. That is the reason the two elements are contained within the one sub-article. It is not the policy intention where a child is in long-term care that adoption should automatically follow. There will be many situations where a child will remain in long-term foster care because although in contact with the family, the family is unable to care for the child. As Senator Power said, the views of the child may be given due weight, an older child may not want to be adopted. A court will not pursue an adoption if a child says he or she does not want to be adopted or it is not in the best interests of the child to be adopted. Adoption will continue to be an alternative, in particular circumstances, after an assessment has been made, after the case has gone to the adoption authority and after the case has gone to the High Court. It is still an onerous process. I have published all the processes that take place for adoptions and which will take place for those children whom we hope will be available for adoption, given the new provisions. An authorisation from the High Court is required before the adoption authority can made an order in such circumstances. That requirement arises from the provisions of Article 41 on the family and the requirement to recognise the rights and duties of parents.

  Senator Walsh raised the issue of duty. The word "duty" was in the previous Article 42.5 and has been used consistently and in the other Article in regard to education.  The requirement to balance the rights of the family with the rights of the child, which under the proposed amendment will be given express recognition, is also reflected in the draft general scheme of the adoption Bill. As I have said, the criteria set out include that the child has been in care for three years and there is no reasonable prospect of the parents resuming care of their child. The test provided not only requires failure but also that the failure is effectively an abandonment of the parental rights established in Article 41. The test goes beyond the one established in Article 42A.2.

  I want to be crystal clear about adoption. Fostering is not a permanent arrangement, though sometimes a child may require foster care for many years or until he or she becomes an adult. Increasingly, we are seeing children continuing in foster care beyond 18 years by being in after-care and staying with their foster families. Long-term and permanent fostering does not give the same legal security as adoption for either the child or the foster family but it may be appropriate. I do not want for one moment to compare fostering with adoption because both options have their place. There are many families who want to adopt and are interested in intercountry adoption. The provision will now say that there will be children in Ireland who for legal reasons before now were ineligible for adoption and who could now, potentially, be eligible for adoption. It is reasonable to assume that some of the children - and we have over 2,000 children in long-term care over five years - would be eligible for adoption. There would have to be a clear assessment of the child's situation and that of his or her natural parents. Adoption could be appropriate for some of those children depending on the child's relationship. Some children do not have any contact with their natural families. It will depend on the child's relationship with his or her birth parents.

  The amendment, and in the proposed legislation that flows thereof, it is not intended to provide that a child who has contact with and a strong beneficial relationship with his or her birth parents and wider family may be adopted unless the child's parents have voluntarily placed him or her for adoption and consented to the adoption order being made. For that reason I ask that members consider linking the formula proposed with adoption as an automatic follow-on from the "supply of the place of the parents" in the context of care and that it is not the policy's intent. It would not be desirable. In truth, I do not believe that was the intent of the Senator's proposed amendment but I am advised that it is one of its potential effects. Therefore, I will not accept his amendment for those reasons.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I thank the Minister for her response. With regard to the previous amendment I said that there was a judgment call to be made. Frankly, the Minister and her advisers are very much mistaken in the answer and response that she has given. There is no sense in which the use of the words "in particular" could create, as she has said, the impression that adoption is being proposed, seen or implied to be the natural extension of taking a child into care. She has already clearly and correctly said, during our discussion of the previous amendment, that the State's duty to "supply the place of the parent" does not involve taking a child into care in lots of different contexts. She clearly stated that taking a child into care is one of a number of possible appropriate responses. For her to make an argument that linking the two sections would somehow impart the idea that adoption is the natural extension of taking a child into care implies that sub-article 2.1° is always about taking children into care. That is simply wrong, illogical and cannot stand as an argument.

  She suggested that it is her intention that the provision that shall be made by law for involuntary adoption, such as is made in the proposed legislation accompanying the referendum or such as could be proposed in the future, should take place subject to the tests and the context set out in sub-article 2.1°. The reason she gave is that she numbered it as sub-articles 2.1° and 2.2° or Article 42A.1° and 42A.2° or whatever way we should describe it. That provision could be void due to its vagueness but nobody here has all of the knowledge. Perhaps the Minister or her advisers could give me instances of where sub-articles 2.1° and 2.2° have been interpreted by the courts to specifically subject the second section to the test and provisions of the first. It may prove helpful. Frankly, a constitutional way to do this is to use the words "in particular."

  To be clear on what we are talking about, legislation can be made, amended and replaced in the future to allow for adoption of any child, including for involuntary situations. Voluntary placement is talked about in the subsequent part but we are talking about involuntary adoption. Should the latter happen "in exceptional cases"? I think the Minister's answer to that is "Yes". Should it only happen "where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected"? I think her answer to that is "Yes". Should such provision be made by law for the adoption of the child an expression of the State supplying "the place of the parent"?   Is that what the State will do? That is not true care.

  Is the provision of such adoption legislation one manifestation of how the State shall "supply the place of the parent" in certain defined circumstances? Is such provision in law for adoption in these cases an expression of the State's duty? I think her answer to that is "Yes". Should such provision in law for adoption be required to be a "proportionate means" in any given situation of parental failure? I think her answer to that is "Yes". Should such provision in law for the adoption of children, even involuntarily, in situations where there is parental failure always take place with due regard to the "natural and imprescriptible rights" of the child? I think her answer to my question must also be "Yes".

If the Minister answers all of my questions with a "Yes" - I think that is her intention - then the only logical thing for her to do is to bring subsections 1 and 2 together. If she does not then she will facilitate a possible interpretation by the courts that legislation providing for adoption in involuntary sessions is not necessarily subject to all of the tests and context set out in sub-article 2.1° and that it is a "best interest" question which needs a different test. I think what she intended was-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Senator, we are not dealing with sub-article 2.1° now but sub-article 2.2°.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen Yes. The amendment is designed to link sub-article 2.2° with the test established in sub-article 2.1°. Members cannot understand the purpose of my amendment without clearly examining what sub-article 2.1° states. I cannot put it any other way than that. There is no way under heaven that one could create the impression, by linking these two sub-articles, that the intention is for adoption to somehow be the natural follow-on to taking a child into care. There is no way that can be proffered as a reason for rejecting my amendment because it is without logic.

  With great respect and courtesy the Minister asked me to consider what she has said and I will. With the same earnestness I ask her to consider her reason for rejecting my amendment. It is illogical and I wish to emphasise that point. I would like to debate, in any forum, with any lawyer who would tell me that is a possible meaning for what I proposed.  I do not like red meat, but it would be an interesting debate. I would be very surprised if anybody could sustain that argument.

  The Minister must do the best she can according to her advice, but without that phrase, "in particular", there is the possibility of a separate interpretation of that section on adoption taking free of what is set out in the earlier part.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I wish, first, to comment on a couple of comments the Minister made in applauding and commending people who adopt children and people involved in the foster care sector.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We are dealing with the amendment now.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I am aware of that, but this has to do with it.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke As we have gone over and over the issues, stick to the amendment, please.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I pay tribute to them because without their input or without having people who subscribe to that particular service -----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke All of those points were made on Second Stage. We are dealing with the amendment now and must stick to it.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh ---which concerns the best interests of the children. I echo what the Minister said in that regard.

  Having listened to the debate on this amendment, I see it related to the first part of the proposed Article 42A.2.1°, but not in the manner suggested by the Minister, which probably reflects the views of her officials, that in some way adoption is a natural follow-on to what is there. I see it linked, as Senator Mullen has said, to the qualification of Article 42A.2.2°, which provides that children can be adopted - we are talking about involuntary adoption - "where the parents have failed for such a period of time as may be prescribed by law". There is no inclusion in this of the various qualifications we debated with regard to the first part of the section. The qualifications "in exceptional circumstances", "proportionate" and so on seem to be missing with regard to adoption. This is a lacuna and I share the concerns of Senator Mullen and find myself supporting the points he made with regard to the amendment.

  With regard to "as may be prescribed by law", the Minister has, rightly, published a Bill relating to adoption. This sets out clearly that a child would have to be in care for three years before this would be triggered. This is an appropriate period of time in the case of children of a reasonably mature age. If a child is ten, 11, 12 or 13, three years is adequate because the views of that child can be clearly ascertained and that input would be of assistance in the decision being made. However, three years is far too short in the case of very young children. Children aged three, four or five are not sufficiently mature to exercise the decision themselves. Given our earlier debate on the connection between the natural family, the biological parents and their child, this consideration must be factored in. For that reason, the Minister should give careful consideration to the amendment.

  The Minister should also consider taking another look at the draft adoption Bill she has published, although she may not be prepared to say this.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That is a different issue. We are dealing with the amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh It is very pertinent from the point of view that we are all here -----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We are dealing with a specific amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh We are all here supporting the sentiments and the thrust of what is behind this constitutional amendment and want to see it passed. Some people will have strong reservations of the nature I outline. The purpose behind the Minister publishing the draft adoption Bill was to give some clarity to the public in advance of their adjudicating on the constitutional amendment. All I am doing is continuing that.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Many of those issues have been dealt with on Second Stage. This is a specific amendment.

Senator Jim Walsh: Information on Jim Walsh Zoom on Jim Walsh I ask the Minister to consider this issue. The Baby Ann case was also mentioned. There is an issue in that regard, with regard to the length of time it took our services to deal with that case. The child was two years old before the decision was made. There are issues surrounding this that are pertinent to the arguments made in the amendment and to our consideration and the Minister's assessment of it.

  I apologise that I must now leave to attend a meeting, but I will try to get back to hear the Minister's response.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames Zoom on Fidelma Healy Eames We are looking at proposed Articles 42A.2.1° and 42A.2.2°, which are part of the same section but are separate points. For that reason, Senator Mullen's argument does not add up. The proposed Article 42A.2.1° deals with where the State must take the child into care because of neglect, but the proposed Article 42A.2.2° deals specifically with the test of failure of the parent and in the best interests of the child when the child of the marital parent is being considered for adoption. Both provisions are distinct and separate, but they are part of the same section.

  I would also like to comment on the three-year rule.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke This amendment has nothing to do with the three-year rule.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames Zoom on Fidelma Healy Eames It does.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke It is not mentioned.

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames Zoom on Fidelma Healy Eames It is implicit in the failure test.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We are dealing with the amendment, which is specific. It concerns including two words, "in particular".

Senator Fidelma Healy Eames: Information on Fidelma Healy Eames Zoom on Fidelma Healy Eames My point is that the three-year rule strikes a very good balance because in the case of a very young child, three years is significant. It is quite a long time in terms of the formative development of the child.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That has nothing to do with this amendment.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank Senators for their comments on this amendment. I am satisfied that it is not required and I do not agree with Senator Mullen's analysis. The net point is that failure is established and this is agreed. If we consider the two subsections, we can see that Article 42A.2.1°, concerns parents who fail in their duty whereas Article 42A.2.2° concerns making provision "by law for the adoption of any child where the parents have failed for such a period of time". It is quite clear that the provisions of Article 42A.2.1° apply, but that this goes much further.

  If one looks, for example, at the provisions of the Bill I have published, one sees we are talking about parents having failed in their duty towards the child to such an extent that the safety or welfare of the child is likely to be prejudicially affected. We also see that there is no reasonable prospect that the parents will be able to care for the child in a manner that will not prejudicially affect his or her safety or welfare. The Bill also provides that the failure constitutes an abandonment on the part of the parents of all parental rights, whether under the Constitution or otherwise, with respect to the child and that by reason of the failure, the State, as guardian of the common good, shall supply the place of the parents and so on. Therefore, we have an even stricter and stronger definition of failure. This is spelled out clearly.

  What we have, as we have in adoption and in law already, is a separate process where a parent is coming in to take the permanent place of a parent or coming in to adopt. This is spelled out in the legislation. I believe this satisfies the concerns. The Bill we have published is absolutely clear on all of those criteria around failure. It is clear the provisions in 42A.2.1° apply, because a child will not be adopted except, obviously, where there has been failure - a strict definition of failure will apply. We are talking here of non-consensual adoption and this will only be in exceptional cases. I expect the application of this provision will be quite rare. Obviously, we want to allow more children who were previously not available for adoption to be adopted, but under very strict criteria, which are spelled out carefully in the legislation.

  I also reject the point being made that the courts might allow only a "best interests" question.  Obviously, the rights and duties of parents in Article 41 will come into the equation and I ask the Senator to consider this. Clearly, Article 41 and the constitutional rights of parents will apply in regard to the test that would apply in regard to non-consensual adoption. This is spelt out very strongly in the legislation and it is also spelled out very strongly that the period is three years. Senator Walsh makes the point that three years is not a long period but, in the life of a five year old, three years is a very long time. In any case, we are not just talking about three years as we are talking about 18 months with the adopted parent also.

  If one looks at intercountry adoption, the vast majority of Irish parents who have adopted in the last ten years have adopted babies aged, say, three or six months because they want to give the child the best opportunity to bond with them, because that child is available and because there is consent and all of the criteria have been met. If one is talking about older children, to have three years and a further period of 15 months is a long period in the life of a child. Incidentally, the period currently is 12 months for children who are eligible for adoption and the failure has to have been for 12 months in the case of lone parents. We are now talking about marital and non-marital situations and we are suggesting three years as well as the 15-month provision. In the life of a child, that is certainly reasonable. One must also consider the time it takes to go to court and for orders to be made.

  Some people would have argued the provision should be for a shorter period but I believe three years, with the 15-month provision, is reasonable and could be considered the most appropriate in terms of the best interests of a child and ensuring there is permanency planning. If there is one failure in our care system, it is the lack of permanency planning, which has been commented on time and again and was noted in the child death report. We have a real problem in terms of children moving in and out of care and moving between foster families. What we want to arrive at is a balance whereby the permanency planning takes into account and gives full respect to the natural parents, Article 41, the rights and duties of parents and the place of the family while, equally, considering the needs of the child. For those reasons, I am not in a position to accept Senator Mullen's amendment.

  The Constitution has quite a number of areas where there is a main provision like this and there is then a sub-article outlined in the way I have outlined the sub-article in this regard. I consider that the formula is well established in the Constitution and also that the meaning is clear. In addition, there is very strong legislation accompanying this. For all of those reasons, the way we have approached it is satisfactory.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I thank the Minister for her response. I pay my own tribute to her. I enjoy listening to her and it is very clear she is more than in charge of the brief, which is very reassuring. Great credit is due to her, and I hope that does not sound patronising as I have listened with great interest to what she has been saying. However, I cannot buy what I am hearing about her reasons for not accepting the amendment. In passing, it was not my intention to ask whether there are other situations in the Constitution where one has successive sub-points. I was asking whether it was clear from the jurisprudence and from judicial reasoning that a second point would have to be read entirely in the context of and subject to the test laid out in the earlier section, because that is the reassurance the Minister is seeking to offer on this point. That is separate from the mere existence of succeeding subsections.

  I note what the Minister has to say about Article 41 and consider that significant. I note also what she has to say about the legislation that is proposed and, again, I consider that the care that has been given to this is testament to her prudence and that it is a balanced approach. However, as I have already said more than once today, and as I know everybody here agrees, we have to look at the changes to the Constitution not just in the context of what the Minister, in her wisdom as the relevant Minister proposing legislation at this time, would deem to be good but also in the context of our having to think prospectively for the future. That is why this is significant.

  While I am not sure I should read anything into this, I note the Minister did not repeat her caution about the possible misinterpretation of my proposed amendment, which I cannot accept as being in any way legally or logically grounded. Therefore, I put it to her there is no possible mischief in what I am proposing. What I believe we are doing is introducing a very helpful clarity. From everything the Minister has said, it is entirely her intention that such provision for adoption in involuntary adoption situations should only take place in the full context of what is provided for in sub-article 2.1°. However, it is very clear there is a potential for ambiguity because in sub-article 2.1°, the test is parental failure "to such extent that the safety or welfare of any of their children is likely to be prejudicially affected".

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator is moving away from the amendment.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I am not. I assure you this can only be understood by making the necessary comparisons.

  Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.

  Progress reported; Committee to sit again.

Business of Seanad

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins I propose an amendment to the Order of Business that we resume Committee Stage at 5.30 p.m. and take Committee and Report Stages from 5.30 p.m. to 7.30 p.m.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Is that agreed? Agreed.

  Sitting suspended at 2.45 p.m. and resumed at 3.30 p.m.

Radical Seanad Reform Through Legislative Change: Statements

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins I suggest Senator Quinn, as one of the co-authors with Senator Zappone, lead the debate.

Acting Chairman (Senator Marie Moloney): Information on Marie Moloney Zoom on Marie Moloney Is that agreed? Agreed.

Senator Feargal Quinn: Information on Feargal Quinn Zoom on Feargal Quinn I thank the Leader for enabling me to initiate the debate. I hope the debate will stimulate not just a debate today but in the months to come because it is an important area. I came into this House almost 20 years ago. I remember coming into the House and realising that I did not know anything about legislation and I wondered how I would go about doing it. As I was a grocer all my life, I began to look for the customer in each piece of legislation. I found when I looked for the customer I was able to come up with changes or issues that had not been considered previously. The case for Seanad reform is similar. Having a debate on the future of the Seanad is important. There is a public disillusion about politics and parliamentary institutions. That includes both Houses. Many people say our system is not working. I would love to think that we in this House could enable it to work better. The public want change. They want reform of the institutions. It is imperative that we do not respond to that wish by the abolition of one of the Houses, which would make matters worse. I hope the debate today will initiate a discussion. That is the whole reason for this paper of 28 pages, which we hope will give enough reason for people to debate it.

  Abolition is wrong. It would give rise to a number of errors, but the first one is that it would require 75 changes to the Constitution. The Constitution has served us well since 1937. I have listed the amendments on five pages. The Constitution has worked very well for us for 75 years yet we are suddenly going to do away with it. It would be a shame to do so because the concept de Valera had when he introduced the Constitution, in particular when he introduced the Seanad, was to enable the State to have a second opinion and view on all legislation going through the Oireachtas. The Seanad provides checks and balances. Just as we seek a second opinion if we go to see the doctor and we are told we need an operation, we go to another doctor to get a second opinion. It is the same with the Seanad. We have the chance to examine every piece of legislation and to give a second opinion. That is the onus on us. The Seanad provides a second opinion and its abolition would sweep very important safeguards away. It would be very difficult if that were to happen. Over the years I have been a Member, thousands of amendments have been made to numerous Bills in the Seanad. The legislation has been improved no end as a result. It would be a shame if that oversight were to be done away with.

  The consultation paper is worth examining. It argues that the Seanad is cost effective. The suggestion made at the time of the proposed abolition is that the Seanad was costing approximately €25 million a year. The figure currently quoted is that the cost is €10 million a year. That has been confirmed by other figures as well.

  Reform is necessary without the need for any new powers. In other words, I am not seeking a stronger Seanad. I am looking for a Seanad that will perform better but to do so the public will have to own it. The consultation paper sets out how to achieve that ownership, namely, by one person, one vote. The citizen does not have a vote, and some citizens have two votes. The reform can be achieved without any constitutional change by giving every citizen a vote, but only one vote. We have five panels. That cannot be changed because the panel system is in the Constitution but the system of voting can be changed. The consultation paper explains how that could be done. It would be very effective if we could manage to have ownership of the Seanad because that it is the main aim. In general, citizens at the moment do not have a right to vote for the Seanad and therefore they do not feel ownership.

  I call on the Government to park the proposal to abolish the Seanad and allow time for a Seanad reform Bill to be considered. Such a Bill is capable of being put together after the consultation has taken place. If we use the next few months to consider the alternatives, look at what we can do, then the reform Bill could be introduced as early as January. If we introduce such a reform Bill as early as January we will be able to give a real alternative to abolition because it is not what we want. The paper is called "Open It, Don't Close It".  A very strong case can be made for maintaining the Seanad. The main case is that it gives oversight of every piece of legislation. This Chamber enables us to have two views of all legislation. We can to add to that legislation in very many ways and can contribute in many ways, and we do. However, we do not do it effectively enough because there is a lack of confidence in the institution. That lack of confidence would be overcome if every citizen had a vote - only one vote. The consultation paper describes very well what can take place and how. One would assume there must be a referendum in order to examine the Constitution but by changing legislation and without having to have a referendum we could create a Seanad that would add to the system of democracy in this country and improve legislation. Included among possible work we can do is scrutiny of European legislation as it comes through. Senator Zappone will speak on this point because she is very clear on the areas in which we can achieve, where at present we are not doing a very good job. The second thing we can do is look at pieces of legislation that were passed but have served their usefulness. It is interesting to note that in Germany in the past year, 2,000 pieces of legislation were looked at but were reduced to 1,700 because the second House was able to look at measures that were needed in the past but are no longer needed.

  There are so many steps we can take and we can do so ourselves. We do not need a constitutional change to do this work, we can do it if we have ownership by the public. I believe the public will own this House if they have a vote and a system whereby they acquire that vote would work very well. We can still maintain the five panels. What we set out to achieve in 1937 was not to challenge the Dáil, have a second Dáil or look for further powers. The concept was a belief that the bicameral system was much more useful than having one House because there would be a second view of all legislation as it came through.

  This consultation paper is worthy of much attention in the coming months. If we give it that attention, we can make the steps that will enable the public to believe this House has got not merely a use but can prove itself in its achievements as well as its usefulness. I urge that it be kept open, not closed.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins In considering the foreword of the document presented to us, I agree that Seanad Éireann has consistently made an important contribution to our parliamentary process, thereby enhancing the quality of our democracy. I thank Senators Quinn and Zappone and their colleagues, Noel Whelan, former Senator Joe O'Toole and former Minister Michael McDowell for compiling such a well researched and informative paper.

  As Leader of the House, I share my colleagues' impetus to reform the Seanad and to this end my goal is to make the Seanad more relevant and accessible to the public. Since this Seanad first met we have put in place some small but significant changes. For example, there has been a significant reduction in holiday periods compared with previous years and this has led to the House dealing with more legislation and spending more time here. The introduction of question and answer sessions with Ministers who are invited to the Seanad has greatly enhanced the quality of debates. The creation of the Seanad Public Consultation Committee constitutes a strong addition to the overall committee system and brings the Seanad closer to the citizen by allowing community representatives to appear before the House. We all agree that the sessions we have had in public consultation have been very valuable. I also worked with my ministerial colleagues to ensure that a much greater number of Bills are commenced in this House. In the past year, some debates that have taken place in the House on those Bills and on new legislation have been excellent.

  I have no doubt that a Seanad which is motivated to work collectively to introduce reforms at this time will enhance the value and relevance of the Seanad for the benefit of politics and the public at large. While we are discussing the future of the House we must, however, look at what is wrong with the Seanad as it stands. One thing that stands out day after day and which has not gone unnoticed externally is the attendance of Members in the Chamber. I have arranged debates with Ministers on every possible topic since the Seanad commenced in May 2011 but time and again I have come into the Chamber and sat with fewer than five Senators in attendance, while Ministers have given up their valuable time to come to the House and discuss policy matters with us. Many of them have come to me afterwards and wondered why they had been asked to attend and address a practically empty Chamber. I can assure Members this does not encourage them to return with any haste. One can only imagine what the media and other observers looking in think about Ministers addressing what is practically an empty Chamber.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane A Dáil, too.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins Members may well be watching debates, as most people do, in their offices but nobody outside knows that. None of the thousands of visitors who come to the Visitors Gallery every day are aware of that. I suggest, as a starting point, that Members begin to demonstrate their commitment to the actual Chamber by attending it more frequently and being seen to do so.

  A related issue I wish to raise is the calling of amendments on the Order of Business asking for Ministers to address the House, on whatever topic, on the given day. Calling for votes and grandstanding in such a fashion on the Order of Business only serves to have a knock-on effect on business for the rest of the day. I accept that while my party was on the other side of the House we also engaged in that process, but it is not right. We all remember the day the Tánaiste came to the House last July and was left standing outside the door. That type of behaviour does nothing to enhance the standing of the Seanad.

  Let us cut to the chase. We will have a referendum on whether the Seanad should be abolished; the Government is committed to holding it and it is included in the programme for Government. I am convinced the public will not support a Chamber as long as they have no say in who is elected to it. All other reports on Seanad reform dealt predominantly with how the Seanad should be elected, with some 80% of the reports dealing with that subject. This matter will have to be agreed well in advance of any referendum because the electorate cannot be expected to buy a pig in a poke. They will not do so.

  I fully support the idea that European affairs and scrutiny thereof should form a greater part of the business of the Seanad. I wrote to the Oireachtas Commission in January, seeking additional resources to allow us to deal with those matters, had a meeting with the human resources section and believed we were going to get the required resources but nothing happened. I have written again on the matter to the chairman of the Oireachtas Commission and await a response. I am convinced we should play a greater role in the scrutiny of the EU work programme and EU directives, though without duplicating in any way the work being undertaken by the House committees already in place.

  Debates on the future of the House should take place and we have already had a number outside the House. On the question of whether the Seanad should be abolished, in spite of the fact that I allowed time today for this excellent report to be debated and in spite of the excellent contributions in the report from Senators Quinn and Zappone, people outside the House will be listened to by the public to a much greater degree than the present membership.   They are the brief comments I wish to make on the document produced and how I see us moving forward. I am open to reforming the Seanad in any way possible - either within Standing Orders or by amending them, if necessary - in order to improve the way it works. The major problem we must address and in respect of which we must try to establish unanimity prior to the matter being put to the public in a referendum is how the membership of the House is elected.

Senator Denis O'Donovan: Information on Denis O'Donovan Zoom on Denis O'Donovan I welcome the debate and thank Senators Katherine Zappone, Feargal Quinn and others for their work on the consultation paper, the launch of which I was happy to attend on Friday last. In today's edition of the Irish Examiner Michael Clifford comments on the launch of the paper and states:

But wait, all is not lost. The Government is serious about one particular reform. The great unwashed can rest assured that they will be given the opportunity to rid themselves of the Seanad. This move can act as a perfect repository for the anger and frustration abroad at the political system. In pubs and clubs, and wherever citizens gather, they will pause in the depths of anger, and sigh that at least Kenny got rid of that goddamn talking shop.

That is what Enda Kenny and his cabinet must be hoping for, at least. For instead of real reform — divesting supreme power from the executive, elevating the role of parliament, looking at the electoral system — the mar dhea version will be available. Abolishing the Seanad will be sold as a "radical reform", when actually, if it does happen, it will represent nothing more than an attempt to distract from a redundant agenda of reform.

I have never met Mr. Clifford, but what he has to say indicates what a journalist can see when looking in from the outside.

  I have no intention of being disparaging, but there is absolutely no doubt that the Taoiseach failed to carry out in-depth analysis before deciding - by means of a knee-jerk reaction at a Fine Gael function held prior to the general election - to announce his intention to abolish the Seanad. It is difficult for him to row back from the position he has adopted. Of course, getting rid of the Seanad has proved popular with the other parties because there is a view that doing so will solve the various problems. The part of the Oireachtas which is in most need of reform is the Dáil. The commitment to reduce the number of Deputies by eight at the next general election is only tinkering at the edges. The Dáil and local authorities require full and proper reform, but it appears sight is being lost of that fact.

  My party's current position is that it is opposed to the abolition of the Seanad, particularly as the Government has failed to introduce real reform in other areas. It is my view that abolishing the Seanad should not be seen as the means by which overall reform of the Houses of the Oireachtas might be achieved. The Fianna Fáil Senators met in an attempt to put together a paper on the direction we believe should be taken in this matter and also to formally oppose the abolition of the Seanad. We recommend that a formal system of public consultation be put in place in the Seanad in order that interested groups might have an input into legislation. I compliment the Leader on the efforts he has already made in this regard. We should, perhaps, be making greater progress in this regard, but I accept that the lack of financial support for the relevant committee may be hampering matters.

  Fianna Fáil recommends that the Seanad be given a new role in respect of European affairs. A substantial amount of legislation which affects the citizens of this country comes from the European Union. In recent times, for example, in excess of 90% of directives from and legislation initiated in the European Union seems to have either supplanted or overlapped with domestic legislation. As a result, the Seanad should be given an enhanced role in the scrutiny of EU legislative proposals.

  The Fianna Fáil Senators also made an interesting recommendation in respect of senior public appointments. Embarrassing scenarios such as that last year could be avoided if the Seanad was assigned responsibility for scrutinising the appointment of senior public servants. Why should this not be the case? The Seanad would be well capable of engaging in such scrutiny.

  Fianna Fáil also recommends that two or three Members of the Seanad, including the Leader, for example, should be able to attend meetings of the Cabinet. There is a precedent for this and a number of Members of this House were very successfully appointed to the Cabinet in the past. The document produced by Senators Katherine Zappone and Feargal Quinn and their colleagues, Seanad Éireann: Open It, Don't Close It, is worthy of a full debate. It beggars belief that in establishing the constitutional convention the Taoiseach and the Cabinet failed to include for consideration and debate one of the three anchors, namely, the Seanad, the others being the Dáil and the Executive, which hold our system of democracy together. That was a huge mistake because, whether by accident or design, the convention will be able to sidestep engaging in a debate on one of the most important institutions of the State. If abolishing the Seanad is put to the people in a referendum, that referendum will succeed. If that eventuality comes to pass, the Taoiseach will, when the history of this period is written, be condemned for removing one of the most important democratic institutions of the State. If the Seanad is abolished, I hope he will live to regret it. Abolishing the Seanad would be a massive mistake. Members must be aware of the fact that, in many ways, we are going to allow that mistake to be made.

Senator Martin Conway: Information on Martin Conway Zoom on Martin Conway The people will decide.

Senator Paul Bradford: Information on Paul Bradford Zoom on Paul Bradford I welcome the opportunity to comment on this important topic. I am sure this will be the first of many occasions on which we will be afforded the opportunity to discuss Seanad reform, a matter on which I have much to say. Given the time constraints, I will be obliged to withhold a great deal of what I wish to say until a later date. I congratulate Senators Feargal Quinn and Katherine Zappone and their colleagues on the work they did in producing this consultation paper for our consideration. I attended the launch on Friday last and what was said certainly provided much food for thought.

  Asking any Government of any hue or any group of Members of Dáil Éireann to consider the future of Seanad Éireann is akin to asking Dracula to reform the Irish Blood Transfusion Service. It is not in the interests of the Dáil or any Government to have a strong Seanad. That is simply how politics works in this country. We are engaging in this debate at a time when there has never been a more urgent need for new politics and new standards in politics. In the light of the number of documents that have been written about the need for new politics, it is easy to become cynical. Any development of new politics must begin with the Dáil, the electoral system and the relationship between the Government and the Oireachtas. It is in these areas that the focus of political reform must rest.

  I read a recent Government report on political reform and really did not know whether I should laugh or cry. It provides information on the progress being made on political reform and indicates that the Dáil now sits one Friday each month. As far as I am aware, no questions can be asked and no votes can be taken during those Friday sittings, but this is heralded as political reform. It is time we got real with regard to political reform. Members of this and the Lower House must recognise what every citizen knows, namely, that massive political reform is required as a matter of urgency. Such reform is required in this House, but it is also required in the Lower House and at all levels of government. We should allow the debate in this regard to begin, but we must ensure it will be serious and fair rather than superficial.

  There are many reasons to criticise Seanad Éireann. Those who criticise what we do present different planks to support their arguments.  The first well known plank is a silly, immature argument about the cost. It is unfortunate that people have been allowed to present the argument that Seanad Éireann is costing €25 million or €30 million per annum. To put it mildly, that is a deliberate falsehood. If the Government wants to save money and I am in favour of saving money, it should look at the cost of Government advisers and the cost of the apparatus of government which has been built up in the past ten or 20 years. Is one Government adviser worth three elected Senators? In my view, the answer is "No". Is one unelected Government adviser worth two elected Senators? I do not think so. If people want to argue about the cost of politics, they are looking at the wrong House. It is possible that Seanad Éireann costs €5 million or €10 million per annum under its current structure but in my view the taxpayer is getting value for money. I do not know of any society, any country, any civilisation, which benefited from less democracy rather than more. Some people will say that we are a talking shop. I think there is value in a talking shop. The problems of Northern Ireland and many other such problems across the globe would not be solved without dialogue and talking, therefore, sometimes talking shops are important.

  This House has always been a reflective Chamber where difficult subjects which may not be approached with ease in the other House have been dealt with in a fair and balanced fashion. To those who say we are a talking shop I would say that we are the House which initially dealt with subjects which are very sensitive in Ireland such as divorce, family planning, Northern Ireland, gay rights, etc. Those subjects were a no-go in the other House but here in this House of calm debate those topics were debated and dealt with. This is a role we can play in the future.

  The system for election to the House comes up for much mention. I refer to the document produced by Senators Quinn and Zappone and others which is so useful in this regard. Our electoral system has served its purpose and probably has passed its sell-by date and needs to be reviewed. We must all concede that there has to be some form of universal franchise for the Seanad and every citizen must have a role in electing the Seanad. When that involvement with the political system is introduced there will be a different public response. The current Seanad electoral system is confusing both for those who are elected and certainly for the people on the outside. If people do not understand an electoral system they have a mental difficulty with the whole concept. We are beneficiaries of the present electoral system and we have to be brave enough to admit to ourselves that in a new type of Seanad with a new electoral structure and system it is possible that most of us will never have the opportunity to serve here again. However, this debate must not be about saving our personal seats but rather it must be about saving Seanad Éireann and a new electoral system must be part of that equation. One possible scenario has been presented by Senator Quinn and other Senators that there would be five panels and a universal franchise. This is a very worthwhile suggestion.

  I refer to a very fine document produced by Fine Gael in the summer before the autumn when we went into an abolition mode. Our official Fine Gael policy of June 2009 - a policy which was very mature and far-seeing - suggested that approximately half of the Members of the Seanad would be directly elected by the public on the same day as the European elections. I hope we will consider that suggestion. We have a lot to talk about and it will require more than one debate. Our first position must be that a Seanad that has served this country with such distinction and which provided a political forum for people such as W.B. Yeats, Mary Robinson, John A. Murphy, Gordon Wilson and Douglas Hyde and many more, is a House worthy not just of respect but is also worthy to be retained. We must reflect on the need for radical change and in tandem with the radical change in politics which is urgently required. Let us not be the whipping boys of those who are unwilling to reform their own House.

Senator Katherine Zappone: Information on Katherine Zappone Zoom on Katherine Zappone I welcome this opportunity to speak on Seanad reform and in particular to hear the considered views of my colleagues. I thank the Leader for his very prompt and gracious response to Senator Quinn's request for this time to allow Senators to put on the record their initial responses to our document that argues for retention and radical reform of Seanad Éireann through legislation. This session of formal consultation is an integral aspect of our preparatory work on a Seanad reform Bill and to which Senator Quinn referred.

  My motivation for being involved in this effort is rooted in my experience of being a Member of the 24th Seanad, led by Senator Cummins and in my examination also of rigorous research analysis such as that of Professor Michael Laver who makes the argument that there exists a potential transformed role for the Seanad if it were to be elected directly and if its remit were to be extended to include significant responsibilities such as the oversight of EU legislation. As we have argued in the document, these kinds of changes would enable Seanad Éireann to fulfil finally the role envisaged for it by the designers of the Constitution.

  Has our legislative function faded, as the Taoiseach put forward two years ago in support of his proposal to abolish the Seanad? My experience in the past 18 months does not provide evidence for such a statement. Senator Quinn referred to a number of Bills put forward, including his own Construction Contracts Bill which it is hoped will be passed before Christmas. Senators Crown, van Turnhout and Daly have put forward the Protection of Children's Health from Tobacco Smoke Bill 2012, drawing on their unique and professional expertise and receiving critical attention from the appropriate Ministers. If passed - and I hope it will be passed - it will save lives. Senator Power's Employment Equality (Amendment) Bill 2012, raised a prime social issue of our time and engaged a range of sectors of civil society in our public deliberations. Although defeated, the Bill made a significant contribution towards equality for lesbian and gay people. Senator Bacik's introduction of an immense work on the Electoral (Amendment) (Political Funding) Bill 2011, ensured its historical passage and it will make a very significant contribution to the participation of women in politics and will consequently increase the vibrancy and health of our democracy. There are many other examples but I hope that these few in these past number of months make the point that our legislative function, particularly with regard to the generation of new law, is alive and well.

  In spite of this, should Seanad Éireann be abolished and if the Government is intent on putting this question to the people - the Leader has just indicated that intention - surely there should be some substantial thought given to how this would impact on the Dáil's powers and the Constitution. Senator Quinn has referred to the 75 separate amendments that would have to be made or the deletion of entire articles if the Seanad were abolished. Should that substantive thought not be given prior to putting it to the people? That would be responsible governance. Senator Quinn and I would want to call on the Government to publish a White Paper on how it would abolish the Seanad and the impact of that, if it is intent on going with this route.

  Our document reminds us that all the 11 reports examining the Seanad since 1937 never called for abolition; they all called for reform. However, the difficulty with these previous reports is there was no follow-up, no implementation. In part, that is because perhaps these documents focused on proposing constitutional change and big schemes for constitutional change have seldom been implemented. Our document emphasises implementation by focusing on implementation of political reform through legislation. It can be implemented within months if need be. We have already moved on this process.

  We held a meeting with former and current Members last Friday. We will continue to consult with party leaders, group leaders, nominating bodies, other civil society organisations. We have already begun the task of drafting the Seanad reform Bill 2013 and we have had offers of assistance on a voluntary basis from an expert group. We invite all Members of the Seanad to participate actively in the consultation process. We are listening carefully to their views and we need those views even during the drafting process and the benefit of their expertise in order to put forward the strongest possible Seanad reform Bill that could enjoy the widest possible support in both Houses of the Oireachtas. We hope to publish a general scheme for the Bill before the end of the year and a draft Bill which we will invite all Senators to sign early in 2013.  We hope to initiate the Bill in this House shortly thereafter.

  It is important to emphasise what can be achieved by way of legislation. It is possible to make the Seanad more democratic and representative of the knowledge and expertise our citizens hold. We can, for example, dramatically expand the electorate entitled to vote in Seanad elections in accordance with the one person-one vote system, as suggested in our paper. It is a sobering thought that the electorate for the vocational panels in 2011 was 1,092. We can change how candidates are nominated to stand for the panels by initiating a dramatic expansion of the nominating bodies. I only discovered the full remit of the administrative panel - incorporating public administration and social services, including voluntary and social activities - when I consulted the Constitution in researching this paper. That panel includes only 14 nominating bodies. Given the growth in expertise of the voluntary and community sector over the years, the potential involvement of these organisations and additional nominating bodies could allow non-mainstream voices to become part of Seanad Éireann. Participation by marginalised communities in our formal political structures is a goal that could be achieved by way of Seanad reform. What we are talking about is a reorganisation of the organising principle of representativeness. We could, for instance, transform the university panel by entitling all third level graduates to vote, thereby rendering it less elitist. We could allow for residents of Northern Ireland or the Irish abroad to vote for some or all of these seats. As other speakers suggested, the Seanad could be given enhanced functions in terms of oversight of European legislation, an issue the Leader is pursuing.

  The precise format of the Seanad reform Bill 2013 will, as Senator Quinn observed, very much depend on the outcome of the consultation process. We are calling on the Taoiseach to put aside the proposal to abolish the Seanad and instead allow time for a Seanad reform proposal that would incorporate changes in terms of how this House is elected. We further request that all Senators and Deputies be given a free vote on the reform Bill.

Senator Susan O'Keeffe: Information on Susan O'Keeffe Zoom on Susan O'Keeffe Before I cut to the chase, to borrow the Leader's phrase, I thank Senators Katherine Zappone and Feargal Quinn for their excellent work and effort in drawing up their proposal for Seanad reform. It will prove a useful document for the furtherance of this important debate. However, I am obliged to reiterate the position I have made clear, namely, that I do not believe we should be having this debate in House time. Instead, I suggest, it should be held outside the House. Senator Quinn referred to the disillusionment among the public with politics, the political system and politicians. We have all experienced that to a greater or lesser extent. However, setting that consideration aside, I have a clear view that it is not the business of the House to be discussing this issue.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane Of course it is.

Senator Susan O'Keeffe: Information on Susan O'Keeffe Zoom on Susan O'Keeffe I am entitled to my view in this regard. However, in the spirit of the debate, I will offer a suggestion for Members' consideration. If each Senator, with the assistance of Senators Zappone and Quinn and the document they have prepared, were to host a debate on this issue in the area in which they live, we would immediately have 60 forums in which members of the public could engage in this important debate. To reiterate, it is my view that the House should not be debating the subject in this time slot.

Senator Sean D. Barrett: Information on Sean D. Barrett Zoom on Sean D. Barrett I thank Senators Katherine Zappone and Feargal Quinn for bringing this proposal before the House. I also thank the Leader, the Cathaoirleach and the Leas-Chathaoirleach for their contributions. Although I have no direct experience of anything that went before, this Seanad, which contains 42 new Members, has proved its worth in the past 18 months. This country was not bankrupted by Members of the Seanad or the Dáil, but by bankers, bureaucrats and builders - the sectors of our society whose representatives were in Government Buildings four years ago this past weekend. If we abolish the Seanad, those representatives will be the happiest people in the world because there will be one less forum for scrutinising and imposing some checks and balances on their activities. We cannot let the wider society down by abolishing one of the democratic institutions of the State when it had nothing to do with the bankrupting of the country and the obligation to seek the support of the EU-IMF-ECB troika.

  Grattan's Parliament was the last parliamentary forum to be abolished in this city, a decision which led to decades of misery following the transfer of legislative power to Westminster. It took 122 years to restore a national parliament to this country and even then, the six north-eastern counties were omitted. That was a major disaster. We should not shut down any parliamentary institution lightly. In his book The Irish Free State and its Senate, Donal O'Sullivan sets out the origins of this House. On 16 November 1921, he tells us, Arthur Griffith, acting on behalf of the President of the first Dáil, Éamon de Valera, met in London with several persons associated with Unionist interests in the South: Lord Middleton; the provost of Trinity College, Dr. John Henry Bernard; and Mr. Andrew Jameson. After this meeting, Mr. Griffith wrote to Mr. de Valera to tell him that the men had made a strong case for a Senate in any new democratic dispensation in Ireland. Mr. Griffith communicated to them his support for a second Chamber, he said in his letter, and indicated his view that his colleagues would be of the same mind. He indicated, moreover, that he had undertaken to consult these gentlemen before proceeding to erect the machinery of state and that they were satisfied with this commitment.

  Today, when one enters this great building, one sees a portrait of Arthur Griffith on one side and Éamon de Valera on the other. These two statesmen established a second Chamber in order to ensure fair treatment of minorities. This House stands supreme in that regard. Even after partition, minorities in the State were treated well in institutions such as the Seanad, something which was not replicated on the other side of the Border. That tradition of inclusivity continues to this day. I received a card the other day from the president of the Bann Rowing Club in Coleraine thanking me for conveying my good wishes to its participants in the recent Olympic Games, even though they opted to row for Great Britain. This House still has standing in terms of the goals of Arthur Griffith and Éamon de Valera to integrate minorities into the political structures of the State. It is an extremely valuable role and one we should cherish. As Senators Zappone and Quinn set out in their admirable document, this House was shaped by a need to counter the strong hold of the Executive over the Legislature in the Irish system. Perhaps a complementary reform that is required when reviewing the working of the Seanad is to relax the Whip system in both Houses.

  The question we must consider is whether this House continues to fulfil its historical role. My answer to that question is "Absolutely." When Committee Stage of the Ombudsman (Amendment) Bill 2008 is taken in the Chamber tomorrow, there will be 34 amendments to discuss, 20 of which have been tabled by the Minister arising from the quality of the debate on Second Stage. Several Ministers have likewise amended legislation on the basis of issues raised by Senators in the course of debate, most of them observing that the debate in this House was superior to that in the Dáil. We have a major role in seeking to rescue this country by way of the checks and balances we provide in the legislative and parliamentary process. The fiscal responsibility legislation was introduced in this House, as were ground-breaking provisions on, for example, family planning and the abolition of corporal punishment in schools. Seminal legislation was initiated here by Senator David Norris, the former Senator and President of Ireland Mary Robinson, and former Senator Owen Sheehy-Skeffington. We have lived up to the role we were asked to perform. We should not throw away the great talents that are here, which are so badly needed if the Dáil is to continue in its present way. This House has historically included among its Members some of the best legal intelligence in the country, as represented, for example, by Alexis FitzGerald, who made important contributions to legislation. The Seanad's contribution to parliamentary endeavours in this country has been acknowledged by a series of Ministers over the years, including Patrick Hogan, a former Minister for Agriculture, and, in more recent times, a former Tánaiste, Michael McDowell.

  Another former Senator, Dr. Maurice Hayes, made a witty observation recently when he compared the Seanad to a junior football team that has last year's seniors on the way down and next year's minors on the way up. What a crop of minors we have had, however. Liam Cosgrave, as Taoiseach, appointed the current President, Michael D. Higgins, to this House. Former Taoiseach Garret FitzGerald began his career here, as did Ministers of State Deputies Brian Hayes and Alex White and the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald. It is a good training ground. I do not know, however, whether there are too many on the way back from the senior team. It is good to have a parliamentary forum that is not adversarial, as we try not to be, but which instead facilitates Members in raising points that would not be raised in the Dáil. There are people in this House who would not be elected to the Dáil but still wish to contribute to the better governance of the country. Such commitment is needed now more than ever.

  An important focus for this House must be to tackle bureaucracies which are immune to scrutiny. In that context, we have a job to do tomorrow to persuade the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, to bring more of them under the scrutiny of the Ombudsman. We also must seek to tackle lobbyists and pressure groups. As we know, €64 billion was taken out of this country in one evening.  It was a major coup by bankers and we still have not got to the bottom of it. I hope we will do so when we assert the dominance of Parliament over those who inflict such punishment on the people.

  I also worry about the growth of other bureaucracies. An bord snip noted that senior management in the Civil Service was growing four times more rapidly than the Civil Service as a whole and was protecting all of its allowances. We must represent the people against this type of abuse of power.

  I have no doubt that, on reflection, we will present to the Taoiseach a reformed Seanad. I hope we will be able to persuade him that the referendum should not proceed on the basis that we have reformed ourselves and earned the respect of the people. With so much to do, a referendum could be a distraction. Parliament must assert itself over the groups which have destroyed the country. I have no doubt this House has a great future.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane I disagree with Senator Susan O'Keeffe in that the Seanad is an especially appropriate forum in which to debate radical Seanad reform. According to voices in the press today, this debate will involve Senators discussing themselves and their jobs, but that is not the case. We are discussing the State and the country, the Seanad and the system of checks and balances. Perhaps none of the Senators present will return to any new Seanad.

  I welcome this debate on radical Seanad reform and commend Senators Feargal Quinn, Katherine Zappone and others on the publication of their consultation document. The debate on the future of the Seanad has been ongoing for many years. Of the 11 reports published on the issue, none has been implemented. Perhaps if action had been taken on foot of some of them, we would have an improved and reformed Seanad. I applaud all of the Senators who contributed to the reports in question. The document before us proposes a range of measures to transform the Seanad without the need for constitutional change.

  It is time to give people an opportunity to vote on the Seanad. People must be informed and given a voice. Debates such as this will inform people about the Seanad. If one were to ask any member of the public what the Seanad does, one would be given a blank stare. The most recent and extensive report published on the issue of Seanad reform was produced by the Committee on Procedure and Privileges in 2003. None of the 11 reports on Seanad reform advocated abolition of the House. Instead, they all advocated reform and the report before us proposes reform through legislation. I do not agree with that proposal because the debate has moved beyond that point. I advocate instead holding what is known as a "preferendum" rather than a referendum. People should be given three choices, namely, abolition, reform and one other option.

  A fundamental problem with the Seanad in its current guise is the electoral system and representation, which do not extend to wider society and are correctly described in the consultation paper as being over-politicised. The House was not highly politicised when it was established, but the position changed under President de Valera. The Seanad was abolished previously because Members of the Lower House did not like it. We are back in the position that obtained in 1937.

  The Seanad was established for a worthy reason, namely, to ensure legislation was critically examined. We must ask ourselves whether the House is fulfilling that role. Critical analysis is sometimes stymied by the Whip system. My party Whip is a good person who works the system. For this reason, I propose changing the system rather than the person. The Government has advocated change and this document also proposes changes. When the Seanad was founded, its emphasis on providing a voice for civic society enabled it to offer opportunities for building bridges to citizens. It was supposed to develop into a political platform in which citizens representing different sections of society would be given a voice and an opportunity to demand from the Government answers to difficult questions. I am not certain the Seanad demands answers to difficult questions today because it did not develop as envisaged. For this reason, I commend the Leader, Senator Maurice Cummins, for pursuing change by inviting citizens to come before us. I also commend the Independent Senators who advocate giving citizens a voice in the Chamber. While the citizens present in the Visitors Gallery may not speak today, perhaps they will be able to do so if they vote for a reformed Seanad.

  The cost of the Seanad is frequently raised in the debate on the future of the House. The consultation document suggests it costs €10 million per annum. Senator Paul Bradford noted that Government advisers cost as much as the House. How can one compare a cost of €4.7 million for advisers and €4.2 million for Senators? We should allow people an opportunity to get value for money in a democratically elected Seanad.

  I note that the first commission appointed to make recommendations on the Seanad proposed quotas for women and those competent in Irish. The commission members were enlightened and well ahead of their time because the Government is only now getting around to introducing quotas for women.

  Senators have noted that the Constitution makes 75 references to the Seanad. Eminent barristers will be able to circumvent this issue by rewriting the Constitution after a referendum or preferendum has been held.

  One of the contributors to the report before us was the former Minister and Attorney General, Mr. Michael McDowell. From memory, I believe he described the Seanad as a crèche for failed politicians. He was, however, man enough to change his mind when he saw what the Seanad did.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan He may have described the Seanad as a retirement home as opposed to a crèche.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane He found out it was neither a retirement home not a crèche. As Attorney General and subsequently a Minister, he was part of the political system and soon changed his mind.

  We should provide people with information and allow them to make up their minds in a referendum. This discussion forms part of an informed debate on the Seanad. We have heard a great deal about what role the Seanad could play in dealing with European issues. The House has not exercised certain powers provided for under the Lisbon treaty. We should avail of these powers, especially given that the treaty was of such importance it had to be put to the people twice. Why should we discard what was provided for under the treaty?

Senator Mark Daly: Information on Mark Daly Zoom on Mark Daly I welcome my colleague, Councillor Ger Fogarty, to the Visitors Gallery. He contributed to this debate by examining ways of having the Diaspora represented in the House.

  Seanad reform is a broad topic. While the scale of the financial crisis has been widely discussed, the Seanad could play a role in addressing the issue of the national democratic deficit. The scrutiny of legislation by the Houses is nothing short of appalling. Our democratic system failed in the period preceding the financial crisis. The volume of legislation not scrutinised by the Dáil, the Seanad and committees is extraordinary. Dr. Brian Hunt carried out a study of Oireachtas scrutiny of legislation which found that 98% of laws were passed without scrutiny by the Dáil or the Seanad. In 2009 alone, 1,291 EU regulations automatically became law in Ireland and the rest of the European Union. In addition, 164 EU directives became law by the stroke of a ministerial pen and without debate in the Dáil, the Seanad or any committee.  Up to 594 statutory instruments became law without scrutiny by this House or the Dáil, while in 2009 only 47 Acts were debated in both Houses. Up to 98% of the laws made were not debated in these Houses, which means we have a structural problem. A reformed Seanad could play a constructive role in correcting this national democratic deficit. My colleagues spoke about the scrutiny of EU legislation as provided under the Lisbon treaty. In the first two years since the treaty was passed 139 directives were proposed, with 428 submissions made by EU member state parliaments. Of the 428, Ireland made only one submission which was ruled out of order. Our structures are nothing short of deficient. We have a serious national democratic deficit. A reformed and properly structured Houses of the Oireachtas could rebalance this. The power has been in the hands of too few for too long, not with those whom the people elect to represent them. It is time for the national democratic deficit to be corrected and democracy returned to the people.

  As well as Senator Katherine Zappone’s proposals, we need to examine how we look at representing those in the North of Ireland and the Irish overseas. There are 70 million people around the world who claim Irish heritage – 40 million in America, 5 million in Canada and 8 million in the United Kingdom. We must examine how we can represent them, with those in the North of Ireland, in order that they can have an input into legislation and policy and how Ireland develops. We must reach out to the Irish overseas who want to play a part in the country’s development.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White I thank Senator Mark Daly for sharing time with me.

  The proposal to abolish the Seanad has its origins in a speech made by the Taoiseach, the leader of Fine Gael, at his party’s presidential dinner on 17 October 2009. I will never forget the shock and awe of his Seanad colleagues when they were taken by surprise by this announcement. It was fascinating that not one of them knew he was going to make it. The announcement sounded great, particularly as it was claimed it would save €25 million, and most of his Seanad colleagues rolled over to concur with him, but some did not. While I do not like throwing bouquets too much at the Opposition, I thank Senator Maurice Cummins for showing leadership in an innovative way.

  There have been many reviews of the Seanad and all-party committee reports, the most recent of which on Seanad reform dates from 2004 under the chairmanship of Mrs. Mary O’Rourke. In March 2009, when I spoke on the issue of Seanad reform, the only change I advocated as being capable of early implementation was the extension of the franchise under the university panels as permitted by a constitutional amendment passed 30 years ago. The Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Act 1979 proposed election to the Seanad by universities and other higher institutes of education and was passed by 552,000 people in a referendum.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan Perhaps the Senator could ask her colleagues because Fianna Fáil was in government at the time.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White This was agreed to by the people. I am fascinated why it did not happen. I had the pleasure of being here-----

Acting Chairman (Senator Marie Moloney): Information on Marie Moloney Zoom on Marie Moloney I must ask the Senator to conclude.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White This is important because we are talking about the Acting Chairman’s position, too. I had the pleasure of being here when Mr. Michael McDowell was justice Minister. He changed his mind about abolishing the Seanad when he attended the House in which he was excellent. We sat here enthralled listening to his eloquence. Former Senator and now Deputy Joanna Tuffy and Senator Jim Walsh had a robust discourse with Mr. McDowell when he had legislation in this House and he was impressed by the quality of the debate. He has said that if the Seanad was abolished, it would mutilate the Constitution, as 73 separate amendments and the deletion of entire articles would be required, reduce the effectiveness of the Oireachtas, sweep away significantly important safeguards in EU and Irish matters and not save much money. I am happy that I am value for money for taxpayers.

  It is very difficult to be elected to Seanad Éireann. I would not have received a nomination if I did not have a track record in business. I was proposed by the Irish Exporters Association to represent it on the Industrial and Commercial Panel.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan The Senator is over time.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White The county councillors who elect Members have themselves been voted for by the people of their areas. Being elected by politicians is a right challenge to have.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan I must call the next speaker.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White Finally-----

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan In fairness, every Member has been given three minutes and everyone is trying to stick to his or her time.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White -----on 17 October-----

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan No, the Senator is out of order.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White I have to say this.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan The Senator must respect the Chair.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White On 17 October Fianna Fáil will be bringing forward a Private Members’ Bill to abolish mandatory retirement in the public and private sectors.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan The Senator cannot defy the Chair. She has taken time from other speakers. It is not fair. She is already four minutes over time.

Senator Mary M. White: Information on Mary M. White Zoom on Mary M. White For God’s sake, we can stay here all night if we need to.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan We cannot because there is another matter to be taken at 5.30 p.m. The Senator should be reasonable.

Senator John Gilroy: Information on John Gilroy Zoom on John Gilroy Perhaps we might start by reforming Senator Mary White.

  Earlier my colleague, Senator Susan O’Keeffe, made some interesting remarks about the appropriateness of discussing the future of the Seanad in Seanad time. It was an interesting point, one with which I might agree if I thought this was an exercise in navel gazing. I have read the document and it seems to be a genuine and honest attempt to stimulate some proper debate about the future of the House. It is to be welcomed and the Senators who published it need to be congratulated. If we were not to discuss the future of the Seanad, we would allow the terms of the debate to be dictated by people with no interest in the House or who have a particular agenda to pursue.

  As Senator Paul Bradford said, political reform must move beyond the abolition of this House. Unless we reform the culture of our politics, I do not believe any reform of our structures will be different. As politicians, we all have to take personal responsibility for all our personal utterances and political acts in this regard. If a proposal to abolish the Dáil were to be put to the people tomorrow, it would have the same chance of being passed. There is a level of cynicism about politicians. As politicians, we have not always covered ourselves in glory over the years.  Perhaps we need to look at ourselves before we start criticising our critics. Perhaps we could be genuine and generous enough to say that our critics might well have a point.

  There is much wrong with the House. The matter of its election is probably the one that we hear most about. Of course, a restricted electorate in the manner of which we have is something that needs to be looked at and the franchise needs to be widened.

 The lack of a clearly defined role for this House is probably where the real problem lies. Nobody seems to be terribly sure how this House is differentiated from the other House and what its role is.

  Senator Keane pointed to the major flaw and problem in the working of this House, namely, the party Whip system. There are times here - we must be honest - when we follow the party Whip against matters in which we believe. I refer not only to myself and my colleagues on this side of the House, but to those on the other side of the House. We find ourselves arguing a point the opposite of which we believe and it certainly needs to be looked at. That is not to say that any one of us here is dishonest in his or her arguments. It is the system that is in place and must be worked. We must decide among ourselves whether we want to remain within the party Whip where we could achieve some things or put ourselves outside of that where, perhaps, as party politicians, we might not be able to achieve anything. That is the balance we must achieve. The party Whip system is what is wrong.

  It has been said that this House is a talking shop. Senator Bradford mentioned that as well. Talking shops are sometimes good. When I look around at some of my colleagues - I will not mention anyone in particular - I see that there are public academics in this House. As to whether they are wasting their time, maybe it is a talking shop for myself and maybe I am the waffler, God knows I have often been accused of it. There are many here who put a great deal of genuine hard work into their contributions and take the job seriously. I wonder, if this is merely a talking shop, and a needless one at that, would 60 people spend so much time trying as hard as they possibly can.

  Some of the jobs that could be assigned to a reformed Seanad are interesting. On the scrutiny of EU legislation, it is beyond argument that such is required. There is also an argument about two matters - scrutiny of legislation and oversight of legislation. I would see both of those matters as being very different. Perhaps the oversight of legislation is where the confusion arises in that modern legislation is proposed by politicians, it is looked at in the other House, it is looked at in committee and by the time legislation, particularly that initiated in the Dáil, arrives at this House, it is well and truly looked at. If we were to look at this to find structural flaws in legislation, which is what I would think is the oversight of legislation, we would probably not find it. Maybe there is a need to review how we do that.

  The scrutiny of legislation is something quite different. In scrutinising legislation we try to ascertain here with the sponsoring Minister whether the legislation he or she brings before the House gives expression to the intention of the Minister. It is an important function. The other House does not do it. The other House breaks down on partisan lines. Here there is a real opportunity to bring the Minister in in a non-confrontational way - God knows, it does not always happen. We should be looking to do this and to try to tease out with the Minister whether the intent matches the words written in the legislation. That is an important function.

  There are other functions as well. I mentioned the role of public academics. The country is not over-endowed with academics but the Seanad is a good platform for such persons.

  If we were to take a look at medium to long-term policy in this House in a meaningful way, I wonder whether the real difficulties that we face would have arisen if former Seanaid were doing that job. I am not saying they were remiss in not doing it. I will mention one Senator, although it is not correct to do so. If a person such as Senator Barrett, a highly respected academic in the field of economics and finance, were here, would he be able to do something that I, without the expertise that he has built up, would not be able to do, namely, hold Ministers to account in a real and meaningful manner? I apologise to Senator Barrett for singling him out but he would take the point.

Senator Catherine Noone: Information on Catherine Noone Zoom on Catherine Noone It would be worse if Senator Gilroy were saying something bad.

Senator John Gilroy: Information on John Gilroy Zoom on John Gilroy We had a debate in the House before the summer recess dealing with rare diseases. Rare diseases, by their nature, affect very few, yet the Visitors Gallery was full of such people and their families. It was a platform. The Seanad gave a platform where there is no other platform available for those whose voices are seldom heard. That is a good example of where the Seanad does valuable work.

  Like other Senators, I could talk all day. I know I will not be in the next Seanad. It is a cynical view to say that all of this discussion about the Seanad is self-serving. Like I said, I will not be in the next Seanad and, if there is such a Seanad, most Senators here will not be. It is ungenerous at least to accuse us of being self-serving. We will be discussing this on a considerable number of occasions again and I will have much more to say about it. I thank the authors of the document for giving us the opportunity to do so.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane I hope not to be in the next Seanad.

Senator Terry Brennan: Information on Terry Brennan Zoom on Terry Brennan The Senator is going to higher places.

Senator Catherine Noone: Information on Catherine Noone Zoom on Catherine Noone That is the problem.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane I am looking for a demotion to the Lower House.

  I commend all of the Senators who were part of formulating this important document that will act as a conduit for debate on the future of the Seanad. I thank all of those former Senators and individuals who took the time to be part of that consultation process. It is an important piece of work that should be supported. I do not agree with everything in the document. My party does not agree with everything that is in it but it is certainly a positive and constructive template for discussion and debate.

  The Leader spoke about the empty seats in the Seanad. If we are honest, the empty seats in the Dáil are also an issue.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins We are not talking about the Dáil.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane When viewers watch "Oireachtas Report", those who happen to stay up late enough to watch it-----

Senator Catherine Noone: Information on Catherine Noone Zoom on Catherine Noone Insomniacs.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane -----one of the matters on which they comment is the fact that the Dáil, when important debates are taking place, is often empty, and that is not an issue that is peculiar to the Seanad.

  We must look at a number of matters in looking at the future of the Seanad. There have been many position papers put forward in the past by individuals, political parties and organisations. Many consultation processes took place - one here under the stewardship of then Leader of the Seanad, Mary O'Rourke. I took part in one of those representing Sinn Féin when I was a city councillor. The establishment and various different political parties in power never implemented any of those proposals and that is why we see those same parties who were in government in the past simply going for the abolition option when they never looked at implementing any of the proposals put forward, both by Senators and individuals, to make the Seanad more relevant.

  There are a number of critical issues if we want to succeed in having a second Chamber. The first is it should be smaller. Sixty Members is too many. I would favour something like 32 Senators, one for each county in Ireland. Perhaps more Senators could represent the Irish Diaspora, but 60 is too many.

  The Seanad must be relevant which means it must have a clear purpose. We should not make any apologies for having a role in shaping legislation. That is important. We need to offer checks and balances against the Dáil.

  Part of the problem, which also is not peculiar to the Seanad, is our system of governance where the Executive essentially controls legislation. Many will argue that one can table amendments and those amendments are not accepted, but how many Opposition amendments in the Dáil are accepted? It is not any different in the Dáil. It is exactly the same.

  We have similar debates to those in the Dáil. Often it is said that the quality of debate can be better in the Seanad. The problem is not necessarily the lack of power the Seanad has in terms of legislation. The problem is that the Executive has far too much power and if one looks at other models in Europe and across the world, that is not the case.

  If the Seanad is to have any relevance, people must have an affinity, have ownership and be able to vote for those who sit in these Chambers. Meaning no disrespect to anybody who has been appointed, I do not like any system where people are appointed to positions where they can make decisions. There are excellent Senators who were appointed, but that should have no place in any reformed Seanad. I also do not believe that Senators should be elected through the university panels. They should be elected by those across the State on the basis of one person, one vote, through panels, or a list system.  Talking shops in and of themselves are not a good thing and I would be very critical of, for example, the health forums. They are a good example of a talking shop where politicians do not have the power to hold decision makers in the health service to account. We have powers in this House, particularly with regard to scrutinising legislation but sometimes it is also important to create space for debate. We have had a lot of good debates in this House, where Ministers were not here to discuss a particular motion but were here to tease out issues which are important. It does not always have to be about amendments and legislation. We can have as much legislation as we want - some argue that we have too much - but it is an important part of any democracy that we create space to have proper informed debate, where statements can be made, people can offer views and from that process, legislation can flow. We should not make any apologies for that being part of what this House does.

  It will be up to the people to decide on the future of the Seanad and a referendum should go ahead. I do not like the fact that there are only two options, namely, "Yes" or "No". That is a mistake. Many position papers, policy documents, ideas and suggestions on the Seanad have been put forward in the past, including the one we are discussing today. We have a constitutional convention which is examining the future of the Constitution and the fact that the Seanad is not being discussed in that forum is absolutely nonsensical. Imagine if members of the convention had the opportunity to discuss all of this. The fact that this referendum is happening because of the capriciousness, or stubbornness, of the Taoiseach is wrong. The constitutional convention would have been the best forum to tease this out and then have a referendum. Obviously, the Government did not go with that option and we will have a referendum. My party will not be supporting any referendum which seeks the abolition of the Seanad. We will fight for a reformed, democratic Seanad that is relevant and that can act as a check and balance against the Dáil. Despite the fact that it may be unpopular, it is the right thing to do because we need to make sure that in the current economic downturn, one of the institutions of this State, one of the arms of the Oireachtas, is not simply severed at the whim of one politician or a group of politicians. That is not political reform and those who believe it is are kidding themselves. That strong argument will be made by my party during the course of any referendum campaign.

Senator Catherine Noone: Information on Catherine Noone Zoom on Catherine Noone I welcome this debate and thank Senators Quinn and Zappone and others who were involved for their hospitality last Friday. I was delighted to go along, as a newer and younger Member, and meet so many former Senators who are still so interested in the Seanad as an institution and to hear their words of wisdom.

  There is no doubt that the Seanad is at a pivotal time. It can either become a more relevant institution by proposing new ideas, representing other voices and showing why Ireland needs a second Chamber, or it can go into the referendum facing a near certain fate. In short, it can either reform or die. The suggestions in the document we are discussing are extremely useful and it puts the debate on the agenda.

  I wish to focus on a number of problems with the Seanad in its current form, one of which is the whip system. There is nothing wrong with the person who acts as Whip but the system itself does not make any sense. If one goes back to why the Seanad was created, the idea was that it would be a checks and balance system for the Lower House. The one fundamental change we could make would be to abolish the whip system. That would radically reform the entire body politic. As others have said, the electoral system for this House is also a serious weakness.

  The cost argument is a crude one. I know we are in very difficult times and are having to make cuts in areas like disability services, but Mr. Michael McDowell gave some very useful examples of cost comparisons that can be made and Senator Bradford has already mentioned the cost of advisors. There are all sorts of things that we spend money on in this state and the Seanad is a really easy target. I am sure there are plenty of people who would be prepared to be Senators and only accept expenses if it came down to the cost. The cost argument is quite weak although because it is populist, it is quite effective.

  In terms of the things that are wrong, the body politic itself has damaged the Seanad. As Senator Keane pointed out, it was always seen as a crèche or a retirement home and the belief was that Senators were only here because they really wanted to be somewhere else. The entire body politic is at fault. Even Senator Cullinane, whom I respect, has said that he does not intend to be here after the next election but in the Lower House. That type of thinking is, unfortunately, why the Seanad is where it is today. Less respect has been shown to it as an institution because Members would rather be elsewhere, for reasons that others have alluded to, chiefly because the power rests in the Lower House.

  When thinking about Seanad reform, we must frame it in context. We are absolutely certain that it will face a referendum. Senator Keane has alluded to a preferendum but I understand, although I am open to correction, that a preferendum is not currently possible under the Constitution. Therefore, it must be either a "Yes" or "No" option. There is no possibility of a preferendum, which is unfortunate, because that would show us what people think on the matter. To even introduce the notion of anything else is a red herring. There will be no reform option in the referendum. As such, we need to frame the issue of reform as something that will be promised in the referendum and introduced either before or immediately thereafter. This reframing of context needs to happen very soon which is why this discussion and the document before us are very useful.

  Seanad reform is necessary, especially regarding the electoral system. As colleagues have said, under a reformed electoral system, it is unlikely that many of us here today would be sitting in this Chamber, but that is okay. As Senator Gilroy said, I do not expect to be in a reformed Seanad. It has been suggested that the very fact that we are here, speaking for our jobs, is cynical. Perhaps some people are here only in an effort to save their own position but the vast majority of us see the value of this Chamber.

 I wish to cite one instance that highlights how effective the Seanad could have been in the past. In 2008, a discussion took place on the Credit Institutions (Financial Support) Act. The then Senator Frances Fitzgerald said "...it is not possible, unfortunately, to amend this legislation... in the Seanad and we are merely debating and giving our point of view on it here today." That line of thinking is so familiar to me and it still seems to be the case. Senator Fitzgerald went on to say "We consider a question and answer session on this matter to be very important...", but such a session never came in the desired format. This was unfortunate and many would now reflect that the Seanad could have had a vital role in questioning and scrutinising that Act. During the subsequent statements session, many prescient comments relating to the cost of the scheme and the number of Government members on the board were made. I cannot help but wonder now whether, if we had had a reformed Seanad then, with more powers, teeth and responsibility, we could have arrived at a different outcome on this matter and many other important issues.

Senator David Norris: Information on David Norris Zoom on David Norris I welcome this debate and compliment the authors of the document, which is very useful. I do not agree with all of it and some of it is vague.  The best part is the last, which is very clear, direct and specific on the issue of costs and nails the lie that there would be significant savings to the Exchequer. This information comes from an independent source, namely, the Clerk of the Dáil, Mr. Kieran Coughlan. We now know that the estimate of €150 million is grossly inflated, but even if it was accurate, it would be a drop in the ocean compared to the nonsense of bailing out the banks. I was one of the voices in this House who spoke against the bailout and gave the reasons and figures behind my argument. I was right, but what we said was not reported. I recall several dramatic occasions in this House, including one morning at 3 a.m. when former Senator Joe O’Toole and I managed to have inserted significant amendments into the legislation on NAMA to make it accountable to the people through the Oireachtas, but there was no coverage. That is a tragedy.

  It is not all one way because there are also faults on this side. If this is a debating Chamber, we need an audience, for which we require the co-operation of the media. I do not wish to trash or attack the media, but in a democracy we need coverage. There must be an end to the pap and nonsense about empty benches. Intelligent Irish taxpayers would know they were being cheated if this place was full throughout the entire session because we would not be doing our other work. Everybody knows we have television monitors, but it is a cheap and easy shot. It is stupid. I spent this morning at the annual conference of the International Bar Association, at which I addressed practitioners of law as a legislator. I was able to speak about some of our achievements which were of interest to members of the association. When I returned to Leinster House, I attended a meeting of the Joint Committee on Foreign Affairs and Trade. So what if my seat was empty, except when I spoke on the children’s right referendum? I often work between 16 and 18 hours a day. Would I really be working if I was sitting in the Chamber? I do not think so. Even somebody of limited intelligence would be able to see that. Therefore, let us nail that lie.

  I have an affection for this place. It is a beautiful environment and this august Chamber represents what the country can do. It can give us hope. The magnificent 18th century ceiling is the handiwork of Michael Stapleton, but when I first came here, the Chamber was closed because the central section had started to collapse. During tours people would remark about the great talent and wonderful work on exhibit and lament that crafts people could no longer do similar work. They can, however. The ceiling was replaced within the last 20 years by young Irish crafts people, which gives me hope. We can use the Seanad to give hope to young people.

  There were occasions in this House when we did not agree. Social progress would have been seriously inhibited in this country without the existence of Seanad Éireann. When the HIV pandemic was starting 20 years ago, the Dáil would not touch the matter with a barge pole, but we held a magnificent debate on it after a briefing given to us in Buswell’s Hotel by a priest and a doctor. They were unimpeachable people. All the silliness was drained from the subject and we had a debate of which we could be proud. I spoke about civil partnership legislation during my address to the International Bar Association. That legislation was initiated in this House. It would not have been introduced as rapidly or as well without the debates we started ten years ago. I was proud to be a Member of this House on the day the Civil Partnership and Certain Rights and Obligations of Cohabiting Couples Bill 2012 was passed. I would not have had a chance of getting elected to anything in this country 25 years ago, other than Seanad Éireann. Now I might have a chance of being elected to something. That diversity is important, as we need to provide a range of voices.

  The amputation of one arm of democracy would be a dangerous step. I do not impugn anybody’s motives, but the coalition has a full house in the county councils, the Seanad, the Dáil and the Presidency. The President is a man of extraordinary brilliance and independence of mind and fulfils his role wonderfully, but he came through the party system. Every single lever of power is dominated by the party system, but dissenting voices can be heard in this Chamber in which one can hear debates on issues of significance. The electoral process is flawed. Everybody in this House was properly elected under the Constitution drafted by Mr. de Valera who made the mistake of abolishing the Seanad in 1936 and had to restore it one year later. Let us not waste that time. We need to consider reform, but we must be careful about being too populist. For the past 25 years I have argued that the university Senators’ process has worked reasonably well, partly because of the process whereby the nominating body confers on the ordinary membership the right to vote. Some wonderful groups act as nominating bodies, but they lack the power to vote. That needs to be examined, but we also need to ensure the voting body is not so large that it becomes unmanageable and impossible.

  We are all serious about Seanad reform. However, we were never serious about it in the past. Time after time I sat on committees which made recommendations that received all-party agreement - I have tabled some of these proposals, perhaps mischievously – but they were voted down by the incumbent Government. That is a shame, but we have woken up and smelled the coffee. We can do a good job of introducing real reform to an essential part of our democracy.

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan I commend the Leader for arranging this debate so speedily and thank Senators Feargal Quinn and Katherine Zappone, with Mr. Michael McDowell, Mr. Noel Whelan and former Senator Joe O'Toole, for preparing this document. I am not sure about the timeliness of this debate, as it may be somewhat premature. However, that opinion may not be shared. I do not agree with everything contained in the report, but I welcome it as a serious effort. The debate may be premature because the country is facing difficulties and we will be taking over the Presidency of the European Union during the first half of next year. Perhaps this debate would be better held in one year's time, but nonetheless I welcome public discussion on the matter. I do not want to agree with some contributors who spoke earlier, but there are people in society who are more important than us. Rightly or wrongly, we are seen as having a vested interest and, to be frank, we do. I do not know of a single Senator or of many in the other House who would vote in favour of abolition of the Seanad in a secret ballot.

  I welcome what has happened in the Seanad by way of the public consultation committee, question and answer sessions with Ministers and the other means through which we are trying to give communities a say. We have backed the Leader in the Committee on Procedure and Privileges on the scrutiny of European affairs. The volume of European legislation and directives being transposed into Irish law is considerable and we have to deal with the issues arising in the short-term without duplication of efforts or encroaching on the work of other Oireachtas committees. However, there is still plenty to be done. We have often raised the question of scrutinising senior public servants and appointments to State boards. The Seanad, like a certain other famous institution in another country, could do an admirable job in that regard.

  Checks and balances are important, as are second opinions.  Across the floor is the distinguished consultant who, I am sure, would concur on the need to obtain a second opinion, which is needed in all walks of life and the provision of which has been one of the values of the Seanad which, as we would all agree, is a more reflective and less partisan Chamber and, on balance, has been more objective. On the legislation it has to deal with, it has performed its function very well. I think of the Leas-Chathaoirlech and all the efforts he has made, as well as those of all other Members. I admire the work done by all Members in dealing with legislation. This Seanad has seen improvements. The Leader has had more Bills initiated in this House and continues to work in that regard with the support of all Members. In regard to the constitutional requirement on the scrutinising of legislation, the Seanad has performed well, as we saw today and yesterday in the debate on the Thirty-First Amendment of the Constitution (Children) Bill 2012.

  The eminent senior counsel, former Attorney General and Minister, Mr. Michael McDowell, has been referred to by others. I admired his input in this House and conversion in regard to its role. He had some famous jousts with many Members, not least Senator Maurice Cummins who was our spokesman on justice when in opposition. He spent many hours in the House arguing with him which, perhaps, helped to change his mind. Abolition of itself, as Mr. McDowell has said, would leave the Constitution a mutilated wreck. He has outlined that it would require 75 amendments to the Constitution and the deletion of entire articles, many of which contain some very important safeguards. Would the public like to see these safeguards being swept away?

  These are important matters to be referred to in the debate. As the Leas-Chathaoirleach is well aware, given his legal background, the President may only be impeached by both Houses; the same applies to a judge. The Comptroller and Auditor General who is accountable to the Dáil, through the Committee of Public Accounts, cannot be removed without the say-so of this House. Article 29 provides for the prior approval of the Seanad for EU proposals for enhanced co-operation and the opting out by Ireland from EU measures on freedom, security and justice issues. The House has to be involved in dealing with these issues. Likewise, the Government's capacity to retain the requirement for unanimity on European Union matters requires the prior approval of the Seanad. These are all vitally important checks and balances.

  Other than what I have said, I am not taking a position. I am not sure if any Member would vote for abolition. I am sure there will be more time for debate, as these are early days. I commend the efforts of our two colleagues and those with whom they collaborated in compiling this document. I look forward to listening to the public debate that will take place on the issue.

Senator Labhrás Ó Murchú: Information on Labhrás Ó Murchú Zoom on Labhrás Ó Murchú Tá an-áthas orm go bhfuil an díospóireacht seo ag tarlú. Tá an-áthas orm freisin go bhfuil an cháipéis seo os ár gcomhair agus molaim na daoine a bhí i mbun na hoibre chun na cáipéise seo a thabhairt dúinn. Táim lánchinnte go gcabhróidh sí leis an díospóireacht ginearálta.

  I welcome the document presented and compliment those responsible for it who, in their own right, are noted for their reforming and campaigning zeal. They have done not only the Seanad but also the nation a service by endeavouring to correct the deficit in the debate. There is a deficit because of the manner in which the bombshell was dropped in the middle of an election campaign, at a time when there was anger. I have no doubt that if the question of the abolition of the Dáil had been raised in the middle of that campaign, the response would have been the same. What is happening is reminiscent of the Republican Party convention in America. The film star Clint Eastwood was extolling the virtues of a prospective Republican candidate for the presidential election and continued to speak to an empty chair as if President Obama was sitting in it. I am not Clint Eastwood, but there is an empty chair in this Chamber today.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen There are a few Dirty Harrys around here.

Senator Labhrás Ó Murchú: Information on Labhrás Ó Murchú Zoom on Labhrás Ó Murchú How much better this debate would be if the Taoiseach was sitting in that chair listening to the debate.

Senator David Norris: Information on David Norris Zoom on David Norris A very good point.

Senator Labhrás Ó Murchú: Information on Labhrás Ó Murchú Zoom on Labhrás Ó Murchú That would be real democracy in action. In recent years much lip service has been paid to the issue of reform. This document is not a knee-jerk reaction. Anybody who has read it from cover to cover will agree that its authors and the consultants have undertaken an indepth analysis of the issues involved. Does a House of Parliament and its possible abolition not deserve analysis and to have the facts put into the public domain? When the Clerk of the Dáil appeared before an Oireachtas committee, he made it clear that the cost of the Seanad was €10 million. Some would say it costs only €7 million. So far as the public is concerned, in the ether there are figures such as €20 million and €150 million floating around. That is not the way to conduct a debate, as one is not being fair to the people because one is not giving them the information they need with which to make a decision. I would regard it as an exceptionally serious decision to abolish the House which is noted for its forensic examination of every piece of legislation. It is noted for the minimal level of partisanship and the lack of personality politics as witnessed day in and day out in the other House. Does the public know that almost 30% of legislation is initiated in this House? If it does not, the question arises is this because we are not effective as legislators or that the media have not given us the opportunity to let the public know precisely what happens in the House.

  Returning to the empty chair, we are speaking to ourselves. The saddest point is that subsequent to the people's response in the referendum we might all realise that we had something in place that we could have moulded and reformed. For as long as I have been a Member, including during the peace process, we have kept using a megaphone to speak to people in Northern Ireland. We have an opportunity to bring them into the House. On any report on which I have the opportunity to make a contribution I will make that point. I could list ten issues that cause consternation arising from European Union legislation, the bog issue being one. There is also the requirement that one must register one's hens, that one must change one's kitchen if one wants to make scones and sell them in shops. All of these requirements arise from EU directives. This House could have played a role in that regard. We will have one opportunity to leave party politics to one side and, on behalf of the nation, not just those living on the island of Ireland but the 70 million people of Irish extraction who want to become part of the electoral process, provide for representation. I do not see that happening, however, except through providing for representation for them in the Seanad.   This is an historic debate and I express my thanks to Senators Zappone and Quinn and the other Senators who have taken a constructive approach to it. I still hope that if there is a referendum that the next section is included in order to give people the opportunity that they are entitled to and not to answer a simple "Yes" or "No" question. People are discerning so one should not underestimate their intelligence. One must include reform as an option. It is only then that we will be truly democratic and truly endeavouring to reflect the wishes of the people. I still hope - perhaps I am wrong - that it will happen and that the Cathaoirleach's chair will not always be empty in the future.

Senator John Crown: Information on John Crown Zoom on John Crown I must declare an interest. When I ran for what has been my one and I suspect only election for Seanad Éireann last year I stated near the beginning of my campaign leaflet that one of my agenda items was the reform or abolition of the currently undemocratic Seanad. That is why I welcome the debate and, unlike Senator Paul Coghlan, I do not think it is premature. The prematurity is, if one wishes to hear a second opinion from this side of the House-----

Senator Paul Coghlan: Information on Paul Coghlan Zoom on Paul Coghlan I am always prepared to listen to a good consultant.

Senator John Crown: Information on John Crown Zoom on John Crown The prematurity is predicated on the assumption that we are having a debate because of an imminent referendum that could lead to its abolition. That is the wrong way to look at it. The debate is not premature but post-mature and overdue. We have had a ten-month pregnancy. The discussion should have taken place on many occasions and now that it is, we are left vulnerable to the accusation of discussing reform when it is too late and know that we are on the way out. It is a reform that would be somewhat akin to somebody in the criminal justice system examining his soul and heart and then deciding to reform his evil ways and promising to be better in the future. That is after he had been tried, convicted, found guilty, sentenced to death, had his last meal and was walking to the execution chamber. Contrition is a bit late at that stage. We need to reform the whole process of government.

  Earlier it was said that neither the Seanad nor the Dáil is responsible for the mess that we are in but I disagree. We are citizens who must now live with the consequences of the greatest failure of democracy and administrative political oversight in the history of the State. The bankers and builders behaved wrongly and unethically but rationally. A system was in place whereby bankers and builders could make short-term profits by exploiting an irregularity environment that allowed them to do it and they did what made sense to them at the time. The real failure was in the process of government. We had regulators who were supposed to be expert enough to ensure that we had the right rules and regulations in place. We should have had politicians in place who were expert enough to provide the democratic oversight over the way the society and its economy was being run.

  While the Seanad was asleep at the tiller the approximate cause for the failure of the country was the Government and the Dáil. I am not being party specific in my accusation. If there had been a change in party personnel it may well have happened just as badly. Why? We had an inexpert Government with technically inexpert Ministers who were locked in a perpetually dysfunctional relationship with permanent bureaucratic civil servants. It was too easy for people to run rings around them. We had a Dáil that was composed of fine people and good public representatives who were primarily focused on issues that related to their constituencies. I am afraid, and I will not use any of the clichés that have been trotted out, that all too often the Seanad seemed to be like a fantasy football equivalent of Dáil Éireann where Senators talked about imaginary constituencies and fantasy Dáil encounters.

  We need to reform the entire process of government. We need a system that allows us to have highly technical, competent and democratically answerable people in the great ministries of State. I have made the following example before and I shall make it again. When President Obama realised that one of the great existential issues facing our species is energy policy he appointed a Nobel prize winning physicist as his Secretary of Energy. We cannot do that. The pool that we have to draw from is of people whose principal skillset has been negotiating a constituency organisation and getting near the top of the ballot paper in their local constituency in the Dáil election.

  We have had a Seanad that could have behaved not better but differently. I would love us to see fundamental constitutional reform in this country. I would love us to have an Executive where a Taoiseach could appoint the best people to his or her ministries. I would love us to have a powerful Lower House focused on national and not parochial issues. I would also love us to have a second House or Seanad that provided a regional link between people and the central processes of government but one completely and exclusively based on democratic franchise.

  This is all a fantasy because it is not what we are going to get. One of two things will happen. We will have a referendum to abolish the Seanad or we will not. The only matter that will determine that - with no disrespect to the Taoiseach - is a political calculation where an amount of political capital will or will not be carefully spent in the years running up to the next general election by having a referendum which may or may not be won. I truly believe that. If we have the referendum it will not be a "preferendum". It will not be a referendum based on the refined document thoughtfully put together by the kind of coalition which could never have occurred in Dáil Éireann but in this House. We will have a "Yes" or "No" to abolish the Seanad type of referendum. That is not the fantasy but the reality. Sadly, if we are confronted with that choice, and no other choice, I will find myself hard pressed to defend the retention of the current Seanad. I mean no disrespect to the honest efforts of many Senators who come here and behave well in the national interest. As currently constituted a "Yes" or "No" referendum is hard to defend.

  I shall finish on one last point on cost that was alluded to. When the Minister for Public Expenditure and Reform, Deputy Brendan Howlin, sat in the House he told us that one of the reasons for abolishing the Seanad was to free up money for the committee system in Leinster House. It was not to free up money for cancer drugs, special needs assistants, teachers, nurses or gardaí. It was just going to move money from one administrative slot to another and that does not constitute a cost saving.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan There are only three minutes left.

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins As I believe there are seven or eight more Senators who wish to contribute, I concede to resuming the debate next week.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan There is now less than three minutes left. The next Member offering was Senator Paschal Mooney but he contributed earlier.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I thank the Leas-Chathaoirleach for this rather unexpected opportunity.

  Like everybody else I commend our colleagues, both inside and outside the House, for compiling the report, particularly Senators Zappone and Quinn. I am concerned that a group of Senators presenting a case for the retention of the Seanad would not necessarily play well with the general public. I would like to see a wider cohort of people in civil society. I am praying that a bunch of former attorneys general will come together at short notice as they did on a previous occasion to scupper a Government proposed referendum by putting forward a cogent argument. We already have one former Attorney General in our group and I would like to see more of civil society engaging. That is my main concern.

  It has been pointed out that we cannot have options in a proposed referendum and that will make it exceptionally difficult. The public are not necessarily apathetic towards the House but they have no empathy for it. They do not understand it. They do not get any information on how it functions. Media coverage of it - Senator Norris has detailed it rather well - is usually negative. If one cannot empathise with something or understand it then one does not care what happens to it. Politicians are viewed with a somewhat jaundiced eye at present. One only has to witness the unfortunate scenes that took place near the home town of the Minister for the Environment, Community and Local Government last weekend. It brought home to people the low estimation that the general public reserve for politicians. If a referendum is proposed in the current climate of austerity and economic deprivation, and presented as a cost-saving measure with no consequence for society or democracy, then I am fearful of the outcome.

  Having said that there is a case to be made. One saving grace is that if and when the referendum is put before the people, there will be a necessity for a referendum commission that is mandated by law to ensure that people are given both sides of the argument. It will be an independently-based argument to justify the retention of the Seanad. All is not lost. It goes without saying that we all favour reform. We are cluttered with-----

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan Does the Senator wish to retain some minutes?

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I would like to report progress.

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan The Senator will have three minutes remaining when we resume. Before we conclude, I know the game may be up for the Seanad, but before we went into injury time, we had 27 minutes of overplay from people who did not respect the six-minute slot. That time would have allowed another four speakers to contribute. We are in injury time in more ways than one, but I appreciate the Leader has agreed to roll over the debate until next week in order that everybody who wants to speak on the issue will have an opportunity.

An Bille um an Aonú Leasú is Tríocha ar an mBunreacht (Leanaí) 2012: Céim an Choiste (Atógáil) agus na Céimeanna a bheidh Fágtha

Thirty-First Amendment of the Constitution (Children) Bill 2012: Committee Stage (Resumed) and Remaining Stages

  Atógadh an díospóireacht ar leasú a 3:

I gCuid 1, leathanach 7, líne 16, “Déanfar” a scriosadh agus “Go sonrach, déanfar” a chur ina ionad,

agus

I gCuid 2, leathanach 9, líne 15, “Provision” a scriosadh agus “In particular, provision” a chur ina ionad.

- (Deputy Rónán Mullen)
  Debate resumed on amendment No. 3:

In Part 1, page 6, line 16, to delete “Déanfar” and substitute “Go sonrach, déanfar”

and

In Part 2, page 8, line 15, to delete “Provision” and substitute “In particular, provision”

- (Deputy Rónán Mullen)

An Leas-Chathaoirleach: Information on Denis O'Donovan Zoom on Denis O'Donovan We are resuming on amendment No. 3, with Senator Mullen responding to the Minister's response.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I forget exactly where we left off. However, I recall noting to the Minister that I had not heard a strong reason not to accept my proposal, namely, the insertion of the words "in particular". This removes a potential area of ambiguity with regard to how the constitutional amendment could be interpreted. It is clear that the insertion of the words "in particular" would in no sense import the notion that what was envisaged in adoption legislation in an involuntary adoption context was some kind of a natural progression from the taking of children into care under the proposed Article 42A.2.1o.

  If the amendment I propose is not accepted, this leaves open the possibility of interpretation of the possibility of legal provisions around adoption in some way that is free of the provisions of Article 42A.2.1o. For these reasons, I would have been happy to hear the Minister say she would take this issue into account and consider bringing forward a suitable amendment or, at least, consider thinking about it further, either before Report Stage here - which is today - or before the matter is before the Dáil.

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald We have had a fairly long discussion on this, but I will summarise again the points I have already made today in this regard.

  The provision as worded and the position outlined make a clear link between failure and any provision in law for the involuntary adoption of children. We are all agreed on the point that failure must be established. I am satisfied that the failure is as set out in Article 42A.2.1o. To suggest that the courts would conceptualise failure in some way other than provided in the Constitution and statute would be illogical. The fundamental difference is that I am clear that the question of the adoption of a child involuntarily goes beyond supplying the place of parents, as in Article 42A.2.1o. It is important to make this point that the failure test here goes beyond that. This must be remembered. Supplying implies, as I already made clear, support to parents, provision orders and is everything that falls short of a care order. What we are talking about goes beyond supplying the place of parents. The Senator should bear in mind also that the supply of the place of parents in Article 42A.2.1o does not extinguish the rights of parents, whereas adoption does. This is a fundamental difference.

  I also draw the attention of the House to the fact that in the way we have formulated the provisions - this supports my point - the two provisions of adoption are not grouped under this Article. They are grouped quite differently. Therefore, it is quite clear that Articles 42A.2.1o and 42A.2.2o are grouped together, whereas the voluntary provision is in Article 42A.3: "Provision shall be made by law for the voluntary placement for adoption and the adoption of any child." Furthermore, the reference in Article 41 to the "inalienable and imprescriptible rights" of the parents obviously always applies when considering adoption. There must be balance in that regard and as we have outlined it in the legislation, there is a series of steps to ensure this occurs. I will not go into that again as the House is familiar with the range of steps that must be gone through in order to arrive at a point of there being failure. Therefore, in this section we are talking about involuntary adoption. The principle is important and I would not minimise it for one moment, but under Article 41, the natural rights of the parent would be very relevant, parents would be given every opportunity and the courts would want to hear everything the parents have to say in this regard. Parents would have full voice with regard to the issue. For these reasons, I will not accept the amendment.

  With regard to Article 41.1.1o, and the "inalienable and imprescriptible rights" of the parents, this builds on the basic premise of failure. However, in providing that parents lose all parental rights and are freed from all parental duties under an adoption order, the requirement of the law must go beyond mere failure.  It must be satisfied that the failure constitutes an abandonment of rights established in Article 41. I am very satisfied that the point the Senator is making is dealt with in the amendment as we have drafted it.

  I would go back to some points I made earlier in regard to language in the Constitution. Every word has to have a very precise meaning and we do not want to insert words that have unintended consequences. We are keeping the language spare and minimal but, at the same time, getting the kind of balances we have been talking about here all day. If I do not believe the words are required, I have to be mindful of the risks of a court attempting to attach some meaning to them; therefore, there is this problem, this risk, which I have outlined. While I know the Senator does not accept this, the unintended consequences are a very real issue in regard to adding this wording. I certainly do not want to contemplate it at this stage. While I understand the points the Senator is making, I believe that in my response I have shown we do not need this extra wording.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I will not go back over the ground on which we do not agree-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator will not be allowed to go back over that ground. He must stick to the amendment.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen I have just said I will not go back over the ground in regard to the likelihood of that interpretation being placed by the courts, which is completely fanciful. However, what the Minister has said about adoption going beyond the supplying of the place of the parent is an interesting argument. Again, but in a similar way, what is clear from Article 42A.2.1° is that there are different ways in which the State shall supply the place of the parent, in some cases through care orders, in some cases through interventions falling short of that, but always in a proportionate way. It seems that what was logically intended was that fitting within the concept of the State's ability to supply the place of the parent, is the constitutional ability of the State to make law to provide for the adoption of children in certain circumstances. For that reason, I do not agree with the analysis that adoption somehow goes beyond the State supplying the place of the parents.

  The State supplies the place of the parents in some cases by making an intervention that falls short of a care order, which is what this constitutional provision envisages. In other cases, the State shall supply the place of the parents in more serious situations where care orders and so on will be required. In some cases, legislation providing for adoption falls within that family of possible responses. On the basis that this is so, there is a problem in the fact we apparently have two tests. The first talks about failure, but failure defined as being failure to such extent that safety and welfare is likely to be prejudicially affected. The second just makes a reference to failure.

  As I said, I have confidence in the Minister's ability in her efforts to provide for very prudent legislation but we have to make constitutional changes with all sorts of future scenarios in mind. Only in the last couple of days, I received an e-mail from a person on this very point, drawing my attention to the fact Article 42A.2.2° did not contain the words "in exceptional cases". That person, who is only one person and not a legal expert, interpreted this in a certain way. In the context of reassuring people that there is some kind of harmony here, it seems one secures the issue and avoids any possible confusion of the issues by the use of the words “in particular".

  That is all I have to say on the matter. I have made my point. The wording of this amendment would be the better with the inclusion of those words. I have heard the Minister's arguments and know they are made in good faith, but I do not accept the logic of them.

  Cuireadh an cheist, "Go bhfanfaidh na focail a thairgtear a scriosadh," agus faisnéiseadh go rabhthas tar éis glacadh leis.

  Question, "That the words proposed to be deleted stand," put and declared carried.

  Faisnéiseadh go rabhthas tar éis diúltú don leasú.

  Amendment declared lost.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke Amendments Nos. 4 and 5 are related and may be discussed together, by agreement. Is that agreed? Agreed.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh Tairgim leasú a 4:

I gCuid 1, leathanach 7, líne 23, “a thabharfaidh an Stát” a scriosadh agus “ar páirtí iontu an Stát” a chur ina ionad,

agus

I gCuid 2, leathanach 9, líne 23, “brought by the State” a scriosadh agus “that the State is party to” a chur ina ionad.

I move amendment No. 4:

In Part 1, page 6, line 23, to delete “a thabharfaidh an Stát” and substitute “ar páirtí iontu an Stát”,

and

In Part 2, page 8, line 23, to delete “brought by the State” and substitute “that the State is party to”.

Amendment No. 4 seeks in Part 2, page 8, line 23, to delete “brought by the State” and substitute “that the State is party to”. Amendment No. 5 seeks in Part 2, page 8, line 27, after “access to,” to insert “or any other judicial matter concerning,”. Amendments Nos. 4 and 5 seek to change the wording in order that cases the State is party to, rather than just cases the State takes, can be affected by the constitutional amendment. This is a very important gap in the legislation and one that our amendment, if accepted, would remedy. The current wording could be construed as leaving a loophole through which the State could evade responsibility in some cases. Our amendment would compel the State to place the interests of the child as the paramount interest in any case it is party to.

  I hope colleagues will support these amendments and close this potential gap. It is very important that many of the cases that have been cited on Second Stage and again today have related to State provision in cases of neglect and where the State has been remiss. It is important that we take cognisance of this fact in the wording and I look forward to the Minister's thoughts on this.

  As I said yesterday and it is important to repeat, we want to as much as possible support for the legislation. One of the potential sources of unhappiness with the wording might be among those who have or feel they have suffered at the hands of the State and who might be very vocal against the legislation. This is one of the reasons we would have proposed, and we support, the notion of the 50:50 split in the time given to debate in the media. I applaud the Minister for the way she is handling this debate because I feel she is dealing with any of the issues that arise in a very categoric and detailed manner. There is nothing to be afraid of in debate around this constitutional amendment. Therefore, it is important to take on board the thoughts of those who may be naysayers in a 50:50 way in order that we can address them fully and tackle them head on. This might be an area where this will rear its head, which is why we put forward these amendments.

  I again use the example of direct provision. I note again what Mrs. Justice McGuinness has said and we have acknowledged her a number of times for her pioneering role in having this legislation and the amendment brought before us. As she stated in the Irish Refugee Council report:

Poverty and Exclusion paints a convincing picture of the damage done to children by years of living in institutional accommodation which is so far removed from the atmosphere of a normal family home. This is rendered even more damaging by the income poverty of their parents.

The author of the report also states there is a danger that the direct provision system is tantamount to child abuse. In future years, will we be looking back at this report and saying they were correct? If so, will people be taking cases against the State and using the basis of the Constitution to do that? What is the State's role in this?

  The direct provision model, for example, is an arm's-length model in that the direct provision is provided through private operators who are working on behalf of the RIA and the Department of Justice and Equality. I use that to suggest a possibility of the State being a party to an abuse against a child. The issue will perhaps arise in these types of specific cases, and any of the cases we have seen over the years have always been very specific and there are certain circumstances surrounding them. I welcome the Minister's thoughts around the whole area of direct provision. It certainly needs to be looked at and the report needs to be acted upon. This is why we say the State, if it is remiss in its provision for children in any sense, should surely be party and be included in the way the referendum is being worded in order that people have redress if the State has failed in its duties.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout Having looked at the amendment, and being very conscious that the Cathaoirleach is keeping us to the amendments, if we consider the Dáil debates last week and the debate yesterday, speakers cited the Kilkenny, Roscommon and child death review group reports.  The provision in the current wording and, equally, in the Sinn Féin amendment will not remedy the failure of the State to act on the concerns of family members or extended family members. That is an area on which we need to work. We are told that “provision shall be made in law”; I hope this will be in the legislation that is introduced. The provision tells us we need to introduce legislation, but it does not limit us in what we do in the legislation. It says it must be done.

  The other areas on which I have concern and on which we need to legislate that will not be covered are the Child Abduction and Enforcement of Custody Orders Act 1991 and the ability of the courts to take the voice of the child into account. The majority of children who come into care are outside of the court orders of the Child Care Act 1991. As they are in care under a voluntary arrangement, they will not necessarily be covered by the wording of the Constitution. Is it the case that they will be covered?

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald They will, under care proceedings.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout Okay. Will the Minister confirm that homeless children who are being provided with accommodation under section 5 of the Child Care Act will be covered?

  On Second Stage I raised the importance of mediation. It is clear from the debate we are having that we hope we do not end up in the courts in many family cases. The hope is that we can solve the cases prior to their going to court. I cited Directive 2008/52/EC, which deals with certain aspects of mediation in civil and commercial matters.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator is moving away from the amendments.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I know. I am slightly, but I am talking about a case being brought by the State or the State being a party to it.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We have had Second Stage and Committee Stage, and we are dealing with two specific amendments now.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I know. I was trying to circumvent it. I appreciate and understand what the Sinn Féin amendment is trying to do. It will not necessarily address the issue. The current wording does not limit us in legislation. On the issues raised by my colleague Senator Ó Clochartaigh, there is a significant onus on us to introduce legislation to address the shortfalls mentioned.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane I have listened to much of the debate. I am sorry I could not be present for all of it but I had to attend a committee meeting. The Minister has given factual information on all of the amendments today. I wish to discuss amendment No. 4 and will stick to it. It relates to the State being a party to a case taken in connection with a child or family. Under Article 27 of the Constitution, the President, if requested by a majority of Members of the Seanad and one third of the Members of the Dáil by joint petition, can decline to sign any Bill. The Minister has responded eloquently. I welcome the debate we have had today on the various amendments because it has clarified many of the issues. In her response, the Minister outlined various procedures that will be introduced by legislation. It is important that what she has said today will be publicised before the referendum because it is informative. When people are asked to vote in a referendum it is important that they have all the information. Not only is the Minister on top of her brief, but she has answered every question that has been put to her eloquently and factually. That is what the people want to see.

  I commend Senator Jillian van Turnhout for her input. I listened to her on the monitor as she referred to research she had done. The Minister’s responses should be well publicised. Sometimes in the Seanad we do not recognise the power we have on Bills. We have the option of signing a joint petition with one third of Dáil Members to prevent a Bill from being signed into law. The Minister is conscious of that. We should all be conscious of it. We are getting answers to the questions we pose. They are well put and I welcome them. The Seanad does the State a service by ensuring that the legislative process is fleshed out in detail. One might say Senator Mullen was dancing on the head of a pin when he suggested that we should have provisions excluded-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The Senator is moving away completely from the amendment.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane I know, but I am making a point.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That was relevant to the previous debate.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane No. It is relevant to this one as well because one could say Senator Ó Clochartaigh is dancing on the head of a pin by putting in two words instead of one. It is relevant. I am fleshing out the point. When one reads it in context it is only two words, but when it is debated and one hears the Minister’s response, it is worthwhile. That is what I am saying. This House is worthwhile. One might not hear the debate-----

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke That has nothing to do with the amendment.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane One might say it has nothing to do with it, but it does.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke The amendments are specific. I call Senator Hayden.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane One might say to people that if one does not know enough about the issue then one should vote “No”. I say to people that if they do not know, they should read the responses of the Minister, Deputy Fitzgerald, in the Seanad and they will get a lot of answers.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I would like to hear the Minister’s response to the amendment. It seems that Article 42A.4.1°(i) and (ii) are limiting in terms of the extent of the obligation that the best interests of the child should be of paramount consideration. Senator van Turnhout has mentioned a couple of instances, as did Senator Ó Clochartaigh, with regard to proceedings that are not so much brought by the State but to which the State is a party. I wonder why it would not be a good idea to include that. I am sure there is a good answer to this.

  It also seems, with regard to Article 42A.4.1°(ii), that the inclusion of any other judicial matter concerning the child would be a wide extension of what is in the current article. Effectively, this provision limits the issues to adoption, guardianship, custody or access to a child. By accepting the amendment we would be extending it to any judicial matter concerning a child. Again, my first instinct is to say “Why not?” Surely in any judicial matter relating to a child the paramount interests of the child should be the primary consideration. I am certain the Minister will have a very good response to the question but I can see what Senator Ó Clochartaigh is trying to achieve, which is to significantly broaden the remit of the amendment. I am sure Senator Mullen would take issue with such an approach, but coming at it from a different perspective, I can see where the amendment is going and I would very much like to hear the Minister’s views on it.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I call Senator Mullen. I knew he would put up his hand.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen It is not only because Senator Hayden referred to me in the past few seconds that I chose to intervene, but it brought home to me how little she understands my motivation. When I met the former Minister of State, Barry Andrews, to tease out some of the issues, get answers and make certain proposals, I said I was not a fan of the proposed wording that the State shall cherish all the children of the State equally, for reasons I have already gone into, and that it imported the concept of the State as parent in a way that was likely to be unpredictable in terms of its meaning. I recall saying to him as well that instead of the word “concerning”, with regard to the adoption, guardianship, custody or access to any child, I would have preferred the word “affecting”, because I was conscious at the time that there might be other kinds of proceeding in which children are affected and it seemed to me to be right and proper that the best interests of the child would be taken into account as the paramount consideration in those situations. One thinks of divorce and separation proceedings, for example. There are many other types of proceeding which involve an impact on children. For that reason I am inclined to support a widening such as that intended by Senator Ó Clochartaigh. I see that as being in no way contradictory to what I said previously because it has never been the intention to narrow down the issues in which children's best interests should be taken into account as the paramount consideration.  For me, the issue has always been the point at which the State is under a duty to intervene, at what point it is in the best interests of children that it do so. With that preface, I support what Senator Ó Clochartaigh proposed.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald This amendment proposes that the best interests of the child should be the paramount consideration. This intention of "best interests" was also contained in the proposal from the Oireachtas Joint Committee. In Article 42A.4.1° we have outlined in a very specific way where proceedings can be brought by the State as the guardian of the common good. I have outlined this in such detail in order to capture all care proceedings because there had been some doubt as to whether the formulation of the Oireachtas joint committee, which simply mentioned "welfare", would suffice. It captured this area by mentioning "care or upbringing" but we did not consider that was clear enough and so we spelt out in more detail in this Article precisely what would be the proceedings brought by the State. I bring Senators' attention to the fact that in Article 42A.4.1°(i.), concerning the adoption, guardianship, custody or access to the child, the wording does not refer to "brought by the State". That is a different provision and Senators might wish to note that.

  There are some general principles regarding what is intended. An obligation is put on the State to enact legislation to provide that in proceedings of the kind identified the best interests of a child will be the paramount consideration. I already spoke about the balance with parental rights and do not believe I need to repeat it. Instead, "having regard to the constitutional rights of the family" is included whereas previously the phrase was "subject to the rights of the family". That is a recalibration of the rights of the child, to have his or her interest advanced as against other constitutional rights, for example, the right of the family. This is a significant balancing of the best interests of the child and is very important. It will, of course, apply to all children.

  I refer to the amendments. These are linked and relate to the scope of the provision and aim to comprehend in the provision all legal proceedings that could be taken by a child or a member of a child's family against the State, the outcome of which concerns the child. Senator Hayden looked at both sides, on the one hand noting that if the provision is extended it could be very wide and could cast a wide net over all kinds of judicial proceedings, to car accidents or all kinds of criminal proceedings. She wondered about that but on the other hand asked why we should not make the provision that wide. Obviously, we considered doing so, and so did the committee, which restricted the provision to key disputes, cases or decisions that affect a child's life when the State intervenes. It decided to focus on the areas under the Child Care Act - we made that specific - but also the other key areas identified, which were adoption, custody, access and guardianship. If provision is broadened it could have implications where the State has to decide, for example, an issue on the basis of the common good, rather than on the interests of the child. That could apply to a variety of situations, as Senators can imagine. It could also interfere with the State's capability to balance and reconcile the rights of different parties. We must keep in mind the overall approach and the objective intended in the article.

  I have a number of other points. This amendment to the Constitution asserts the rights of children in robust language. For the first time, children are recognised in the Constitution and rights are to be conferred on them in an acknowledgment of their vulnerability. We have talked about this a number of times today. I refer the Senator back to the overarching provision in Article 42A as he considers his amendment. We must remind ourselves about the express reference made there to "the natural and imprescriptible rights", which powerful and compelling language is now proposed for the first time for the Constitution. I went into some detail as to why this was considered stronger than the formulation to cherish all the children equally, as I believe it to be. We should not overlook that. That article frames the best interest of the child and, I repeat, must be looked at again in the context of both that article and other articles in the Constitution. It is intended to comprehend family law proceedings and proceedings under child care legislation.

  To answer the points raised by Senator van Turnhout about what comes under this provision, a voluntary care order still falls under child care proceedings and would be covered. I refer to another point the Senator made. She has a particular interest in the direct provision issue. I just read what the Minister for Justice and Equality, Deputy Shatter, had to say about that when it was discussed in the Dáil. He is very clear about examining what is contained in the report mentioned and about asking the RIA to examine it. As to the question of the welfare of children in direct provision, the Minister used very strong language to describe how outraged he would be if some of what has been reported is true, in terms of the basic requirements these children should have. We need to examine that issue and must take that report very seriously. I assure the Senator that work is underway to examine it and its implications and to arrive at the facts in question.

  The approach of identifying specific key proceedings relating to children is consistent with the approach of the committee as regards best interests. It is somewhat different when it comes to the views of the child and I will make separate comments on that because the two amendments have been linked to both provisions. This is about the resolution of all disputes concerning the key areas and for that reason, I will not accept the amendment.

  I do not know if we are going to address the issue of the views of the child separately. Are these amendments linked?

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke We are discussing the two amendments together.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Yes. The question of the views of the child being taken into account was noted a number of times. The proposed obligation to give due weight to the views of the child is a new obligation at constitutional level and "due weight" is an important part of that, meaning not only hearing the child's views but giving them due weight. A number of Senators, including Senators van Turnhout and Hayden, spoke about the potential of legislation in this area. It is a practice issue and we are leading the way in terms of ensuring the views of children are taken into account. I refer to Comhairle na nÓg, student councils and a series of ways in which this is the practice in this country. Considered internationally, we are doing very well in this regard and although we have a way to go there is much good practice. We need to build on that. From now on it should be feasible to build this in as a principle in the legislation that comes before us in a variety of areas, particularly when constitutional weight is included. There is a lot of scope there, there is much participation by young people and we are currently funding youth work throughout the country to the tune of approximately €65 million. Given the projects young people are involved in - I am sure Senators are familiar with them - there is enormous participation in dealing with homophobic attitudes, mental health issues and general citizenship. There has been an explosion of interest by young people in all those issues and they are very actively involved in every county, as far as I can see. Although we are limiting the rights of the child's voice to be heard in judicial areas, at a practical, administrative and day to day level that is something that can be developed easily without the need for the constitutional provision. Nevertheless it is there and can be developed further in legislation.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh I thank the Minister for her comprehensive answer and appreciate what she said. However, this issue will be a very important part of the debate around the referendum in that this provision could be read as stating the State is being precluded in a sense from taking into account the best interests of the child and therefore if cases are taken against the State in the future the State's best interests will be put first as opposed to those of the child being paramount. The logic of our amendment is to close off that loophole, or make it very clear that in such a scenario the child will be paramount in all those cases, even if the State is also a party. If the State has been remiss it is important that the rights of the child, or the best interests of the child, should be paramount.

  I would welcome also clarification from the Minister on a very important point. We are teasing out these issues today but they also need to be teased out in all fora and in the media in the run-up to the referendum.   Our colleagues in Fianna Fáil have stated that they are opposed to the idea of a 50:50 debate. Is the Government in favour of equal time being given to those on both sides of the argument? These are the types of issues that are going to arise and it is important that logical arguments be put forward by those on both sides of the debate. If people have concerns with regard to what is proposed, then these should be the subject of full, frank and open discussion and the Minister should be in a position to give as categorical an explanation as possible of the Government's stance. This is an area in respect of which people might suspect that something is afoot or that an attempt is being made to protect the State against the rights of children being asserted. Questions might also arise as to whether there is a fear with regard to the State being sued in the future. These are the types of issues which could be brought up during the debate and that is why we would like the loophole to be closed off by insertion of a reference to proceedings that "the State is party to". This could relate to numerous kinds of cases which could be brought in the future on foot of the State's intrinsic role in the context of intervening in child care.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane I previously spoke in the House on the issue of a 50:50 debate in respect of a different matter. When the judgment was handed down in respect of the issue to which I refer, there was a 50:50 split throughout the country. I am not being critical of that or any other judgment, I am merely making my views known in the Seanad as I am entitled to do. I have no wish to criticise the Judiciary or judgments handed down by its members but I must point out that society informs debate. In that context, both society and judges in this country are informed by the views of the entire populace. As far as I am aware, all of the parties that are represented in this House are in favour of the referendum. I also understand that all of the Independent Senators are in favour of it. All of the Members of the Seanad were democratically elected by people in this state. One could, therefore, say that, in theory, if proportional representation and democracy work, then everybody - those who voted for Sinn Féin, the Independents or whomever - in the State is represented by a voice in this House.

  In light of what I have said, I am at a loss to know who is going to make the decision with regard to what will constitute a 50:50 debate in the context of the referendum campaign.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke This has nothing to do with the amendment.

Senator Cáit Keane: Information on Cáit Keane Zoom on Cáit Keane In the context of the amendment, a question was asked regarding what the Government is going to do with regard to a 50:50 debate. I am part of the Government. The McKenna, or 50:50, judgment was handed down solely by means of a 25-page ruling. This matter requires a great deal of discussion and I am going to ask the Leader to facilitate a debate on it in the House at another time. Who is going to give the opposing view in a 50:50 debate relating to the referendum? It will just be people talking for the sake of doing so and all we will get will be a lot of hot air.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden I am very satisfied with the Minister's response, for which I thank her. When debating issues relating to children and child protection, we must not forget the need to consider the Constitution in its entirety. I had forgotten the State's role as guardian of the common good. Tempting as it is to focus our complete attention on the issue of children's interests, we must remember that this matter falls within a wider context. The State has a duty in respect of the rights and obligations of all citizens, including those who may be involved in litigation concerning children, who may, for the sake of argument, have a disability and who also need and deserve the State's protection.

Deputy Frances Fitzgerald: Information on Frances Fitzgerald Zoom on Frances Fitzgerald Another point I would make in respect of these two provisions, which relate to the best interests and the views of the child, is that in framing them we used the term "shall". This may not seem that significant but when one considers the Constitution in general - I accept that we could be criticised in this regard - using that word creates a strong imperative in the context of the best interests and views of the child. Very often in the Constitution the word "may" is used. What we are doing is granting authority to the Oireachtas and giving it a mandatory direction to re-examine the relevant legislation if the referendum is passed in order to ensure that it meets the requirements outlined in the Bill in respect of the best interests and views of the child.

  I look forward to a good public debate on the wording. I am sure the broadcasters, subject to their own imperatives, will make decisions on how to deal with this matter. The point that has continually been made by Senators is that we must ensure that people are informed. I have been struck by the range of the debate on this legislation in both this and the Lower House. I have also been impressed by the detailed knowledge possessed by Deputies and Senators in respect of this matter. The debate in which we are engaging is very different from the type of debate in which we might have engaged even five or ten years ago. There is huge interest in and knowledge and awareness of the relevant issues. In addition and in recognising past failings, there is no doubt that we want to do the very best we can in this area. I hope Senator Ó Clochartaigh will understand when I state that I am not in a position to accept the amendments.

  Cuireadh an cheist, "Go bhfanfaidh na focail a thairgtear a scriosadh," agus faisnéiseadh go rabhthas tar éis glacadh leis.

  Question, "That the words proposed to be deleted stand," put and declared carried.

  Faisnéiseadh go rabhthas tar éis diúltú don leasú.

  Amendment declared lost.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh Tairgim leasú a 5:

I gCuid 1, leathanach 7, líne 27, “nó aon ábhar breithiúnach eile maidir le haon leanbh” a chur isteach i ndiaidh “rochtain ar aon leanbh”,

agus

I gCuid 2, leathanach 9, líne 27, “or any other judicial matter concerning,” a chur isteach i ndiaidh “access to,”.

I move amendment No. 5:

In Part 1, page 6, line 27, after "rochtain ar aon leanbh" to insert "nó aon ábhar breithiúnach eile maidir le haon leanbh",

and

In Part 2, page 8, line 27, after "access to," to insert "or any other judicial matter concerning,".

  Cuireadh an leasú agus faisnéiseadh go rabhthas tar éis diúltú dó.

  Amendment put and declared lost.

  Aontaíodh an Sceideal.

  Schedule agreed to.

  Aontaíodh ailt 1 agus 2.

  Sections 1 and 2 agreed to.

  Aontaíodh an Réamhrá.

  Preamble agreed to.

  Aontaíodh an Teideal.

  Title agreed to.

  Tuairiscíodh an Bille gan leasú chun an breithniú deiridh a dhéanamh air.

  Bill reported without amendment and received for final consideration.

  Tairgeadh an cheist: "Go rithfear an Bille anois."

  Question proposed: "That the Bill do now pass."

Minister for Children and Youth Affairs (Deputy Frances Fitzgerald): Information on Frances Fitzgerald Zoom on Frances Fitzgerald I thank Senators for their contributions. Everyone engaged so positively in the debate on the amendments. I thank those Senators who tabled amendments. As a number of speakers noted, discussing the matters relating to those amendments will assist people in understanding the proposed constitutional amendment during the referendum campaign.

  I thank the members of the various political parties in the House and the Independent Senators for their support and positive engagement in respect of the Bill. We must ensure that the vision we have shared with each other today is communicated to the public in the coming weeks and that we engage in the kind of debate that is necessary. We are aware from previous referenda that people must be informed. It is critical that they are informed and that they understand what is being asked of them, otherwise ambivalence arises in the context of what is intended. We do not want the latter to happen.

  I take the opportunity to thank the officials from my Department who have worked extraordinarily hard in the past year in putting together the constitutional amendment. Given that the Department is new and that we were trying to establish it while also drawing up the amendment, they have done great work. I pay tribute to those members of my staff who spent many hours, weeks and months working on the amendment with me.

  I also pay tribute to the Attorney General and her staff for the work they did. The Attorney General displayed significant commitment and dedication in respect of preparing the Bill. We engaged in many detailed discussions together. As stated earlier, we considered quite a range of formulations before choosing the particular wording contained in the legislation.  The staff have devoted significant amounts of their time and we considered a large volume of legal opinion on a variety of formulations and wordings because every word has implications and must be treated very seriously.

  I pay tribute to the vital engagement of the wider civic society in the preparation of the proposed amendment. The role of the wider civic society has been significant in the work of allowing children a more central role and in ensuring we do the right thing for the protection of children, whether by way of legislation or a constitutional amendment or in the provision of resources. Civic organisations have worked to ensure the children of our nation are given a more central place and are given greater recognition and protection. They will undertake a nationwide campaign in favour of the amendment of the Constitution and I hope the public will hear what they have to say.

  This is also the time to reflect on the courage of particular individuals who have spoken out about their own personal experiences as children, which in some cases have been very difficult. It requires an extraordinary act of bravery to stand up to talk about one's personal experience when that is an experience of abuse and difficulty. I am thinking of many of them as I say this. We owe them a debt of gratitude because they have been so courageous in facing up to their own internal demons in many cases and sharing them with us. Their actions have helped in the future protection of children.

  This amendment will recognise children in their own right in our most fundamental law, the Constitution. It is regarded as merely symbolic by some but it is clear from the discussion in the House today that it is not merely symbolic but it is also practical. Its practical implications will be visible in decisions affecting children. It will impact on judicial decisions and also in case law. It will provide an opportunity and a challenge to the Supreme Court and the Judiciary to interpret the provision. As Senator Rónán Mullen has said this will be interpreted by the Supreme Court although it is not easy to predict in what circumstances this will arise.

  The proposed Article 42A.1 refers to the natural and imprescriptible rights of all children. This is a strong message from the Legislature about this central issue. It will provide rights and protections for all children regardless of the marital status of parents. Many people are surprised to realise that children are not treated equally with regard to the marital status of their parents. They cannot quite believe that in 2012 this is still the constitutional position but this proposed amendment will change it.

  Constitutional change is but one aspect of the change and it is not a panacea. This point has been made by many speakers in the debate. I acknowledge that the issue of resources and legislation need to be dealt with and these will be challenges. When this referendum is passed, I will do my best to prioritise the adoption and tracing legislation that will be required and the establishment of the new agency and the legislation to allow for best interests of the child and for the views of the child to be taken into account.

  This proposed amendment is a first step but it gives the child a central place in our Constitution and it will have an impact in other areas. The Constitution currently does not adequately differentiate between the needs of children and adults and this amendment will do so. I thank all Senators for grasping the opportunity by supporting this amendment. I thank everyone who has worked with me over recent years and those who have contributed to this work over a long period. I refer in particular to former Deputy Mary O'Rourke and the members of the joint committee; the Minister for Justice and Equality, Deputy Alan Shatter, who has played a key role in highlighting these issues; many named Senators; non-governmental organisations; previous Ministers who have worked to bring this to the point where I am fortunate to present the wording to the people on 10 November. I hope the choice of a Saturday for voting will allow more people to vote. This has been called for and here is the opportunity to prove that the electorate will use the opportunity. I hope students, young people and families will vote. I hope the choice of a Saturday will result in more people voting and it means that schools will not need to close. I thank all Senators for their contributions to the debate which has been helpful in outlining the key issues.

Senator Imelda Henry: Information on Imelda Henry Zoom on Imelda Henry I thank the Minister and her staff for their hard work. The debate was excellent. The proposal has cross-party support and the referendum will be held on Saturday, 10 November. It is our job as public representatives to ensure that the people are informed about the referendum and to encourage them to vote, which may be the biggest difficulty. This proposal is to ensure that all the children of the country are safe.

Senator Aideen Hayden: Information on Aideen Hayden Zoom on Aideen Hayden Many years ago a political leader in this country said that the issue of contraception would be dealt with when a united Ireland had been achieved. It is always easy in tough economic times in particular to put issues such as this on the back burner with the reasonable excuse that the country is in crisis and more important things need to be dealt with. It is a mark of the commitment of the Government and the Minister, Deputy Fitzgerald, that we have arrived at a symbolic moment when we begin to regard and treat children in a new way. We all agree it is high time we drew a line in the sand over the shameful history of how we have treated children and in particular those children who have looked to the State for support.

  This debate on the amendment has demonstrated that even in periods of economic distress, change is possible. I hope this will be the first in a series of measures which the Government will take to bring about fundamental change in Irish society. I thank the Minister and her staff. I have dealt with members of her staff in the past year and I know of the effort and energy they have expended on this process and on the entire agenda dealing with children. I refer to the role of the NGOs and Senator van Turnhout and the role of other Members of the Oireachtas over many years. I refer in particular to my colleague, Senator Bacik, for her role.

  I have two issues which I hope the Minister will consider. I raised the issue of the Magdalene women and those who endured Bethany Home. To really draw a line in the sand under our shameful past, we must offer a genuine apology to those people who suffered, with real compensation and a recognition of their suffering. My final point was alluded to by the Minister in the course of the debate in response to one of Senator Rónán Mullen's amendments.  It relates to our treatment of the children of marital and non-marital families and the provision in the draft adoption legislation to extend the period for consideration of the adoption of all children. I have a grave concern in this regard, namely, that while we were prepared to accept a timeframe of 12 months in respect of the children of non-marital families, it is now proposed, because we are considering the position of marital families, to extend that time limit to three years. I do not know whether there is scope at this stage for the Minister to reflect on this anomaly. There is an onus on us to ensure there is no continuation of the shameful treatment to which non-marital families were sometimes exposed in the past.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I congratulate the Minister, Deputy Frances Fitzgerald, on her achievement in bringing this proposal through the Oireachtas. Many have promised, but it is she who has delivered. The word "historic" is overused, but, like Senator Cáit Keane, I am minded to clap as the legislation completes its passage through the Houses, ready to go before the people on 10 November. The Minister took the time to consider all of the expertise at her disposal and the work already done by Members of the Oireachtas, members of civil society and various non-governmental organisations. It is no small achievement to have found a balance in what is proposed such that we all find ourselves not merely supporting the amendment but heartily supporting it. In the midst of an unprecedented economic recession, there is something powerful to behold in a proposal that unites people across a range of views and positions in the endeavour to confirm the rights of children, atone for the failures of the past and draw a strong line in the sand in terms of what is required to protect our children's future. It is difficult to overestimate the significance of what has been achieved and I am immensely proud of our collective efforts.

  The debate in the House yesterday and today and the debate in the Dáil last week have shown that Oireachtas Members are very well informed on the issue of children's rights. Our job now is to get the message across to the electorate. Just as children were in the past expected to be seen and not heard, we must ensure the forthcoming referendum campaign is not merely about posters but also about engaging the public in a meaningful debate on the proposal before them. People want to be informed. All the groups to which I have spoken want to know what the amendment means. We have heard expert input from Senators in this Chamber; the challenge now is to ensure people come out and vote. The decision to hold the referendum on a Saturday, something for which many of us have called in past ballots, presents an interesting variable. We all have a role to play in encouraging a good turnout.

  I hope the people say "Yes" to this constitutional amendment on 10 November. Our work will begin in earnest if and when the referendum is passed. The provisions set out in the amendment place a huge onus on the Oireachtas to legislate for the changes that we all agree are required in order to protect the children of the country.

Senator Trevor Ó Clochartaigh: Information on Trevor Ó Clochartaigh Zoom on Trevor Ó Clochartaigh Ba mhaith liom tréaslú leis an Aire as ucht an reachtaíocht seo a thabhairt tríd na Tithe. Is lá stairiúil é seo. Is lá an-tábhachtach é do leanaí na tíre. Tá áthas orm go bhfuilimid in ann tacú leis an Aire san obair seo. Ba mhaith liom tréaslú freisin le comhghleacaithe an Aire sa Roinn, mo chomh-Sheanadóirí agus Teachtaí Dála agus na daoine ar fad a d'oibrigh ar bealach ar bith leis an mBille thar a bheith tábhachtach seo a thabhairt os ár gcomhair. Caithfear an reachtaíocht a leanúint le gníomh chomh maith céanna.

  I commend and congratulate the Minister on her efforts in bringing forward this proposal and her handling of the debate thereon. This is a fantastic day. It is vital, however, that the Government follow through with action. In that regard, I welcome the Minister's reference to the legislation that will be introduced in due course. It is incumbent on us to bring forward the ethos and philosophy underpinning the amendment in the work we do here. That will involve child-proofing and poverty-proofing every Bill that is brought before the House, as well as considering the impact on children of all budgetary decisions, particularly in the area of social welfare and education.

  I agree with Senator Aideen Hayden that one of our priorities must be securing redress for the former residents of the Magdalene laundries and Bethany Home and the women subjected to symphysiotomy in the past. We must ensure our shameful past is not continued into the present. I have referred to the direct provision model for asylum seekers on several occasions. I hope we will not discover at some future time that abuses equal to those which took place in our shameful past are happening in the country in the present day.

  I offer the Minister a word of caution in respect of the forthcoming referendum campaign. There was great surprise last year when the Government's proposal on increased powers for Oireachtas inquiries was rejected by the electorate. Members have surmised in the course of this debate as to who might emerge in the coming weeks to oppose this constitutional amendment. The answer is that we simply do not know. What is certain, however, is that we have no reason to fear any of the arguments that might be put forward in opposition to the proposal. No matter how many hours of coverage are afforded to any "No" side which might emerge, we on the "Yes" side have the qualifications, rationale and moral authority to debate in an open and positive way. As such, I urge the Government not to attempt to override the 50:50 requirement in regard to discussion and awareness-raising in the campaign. It is a fundamental democratic principle which should and must be upheld by the Government.

  Ba mhaith liom bheith dearfach ar an lá iontach seo, atá tábhachtach do leanaí na tíre agus clann ár gclainne amach anseo. Déanaim comhghairdeas arís leis an Aire. Déanfaidh muid i Sinn Féin ár gcuid chun daoine a tharraingt amach ag vótáil agus a chinntiú go dtabharfar tacaíocht don reifreann seo. Ba cheart go mbainfeadh na Billí a bheidh á phlé againn amach anseo le brí agus éiteas an méid atá déanta againn sa reachtaíocht seo, agus go mbeidís ar son leanaí na tíre.

Senator Rónán Mullen: Information on Rónán Mullen Zoom on Rónán Mullen Ba bhreá liom freisin tréaslú leis an Aire as an obair mhór atá ar siúl agus déanta aici agus ag a comhghleacaithe. Before making my concluding remarks on the proposed constitutional amendment, I thank and congratulate Senator Aideen Hayden on her very impressive and impassioned intervention. I was particularly admiring of her knowledge of Dáil and Seanad history. I presume it was in the Oireachtas that the comment was made that we could not deal with contraception until we had a united Ireland. I was tempted to intervene in order to point out that this person at least understood the unitive as well as the procreative dimension of the issue.

  The Minister and her team have done well in bringing this proposal successfully through the Houses. I have acknowledged that the wording strikes a balance between the competing rights at issue. I remain of the view, however, that it could be improved by the resolution of certain ambiguities, as set out in my amendments. I accept that the Minister had to do what she had to do and thank her for considering the amendments and giving her response. I am a great fan of the natural law basis of the Constitution and, in that regard, welcome the reference to the natural and imprescriptible rights of all children. It will be a very good day when these words are inserted into the Constitution. I am a person who views proposed constitutional change with a sceptical eye, as it is the duty of all of us to do. We have already seen in the lifetime of the Government that those who looked at proposed constitutional change with a sceptical eye were vindicated when the matter was put to the people. I refer, of course, to the proposal on increased powers for Oireachtas inquiries. It is right and proper that we should be very cagey about any proposed constitutional change. I approach the issue from the perspective of one who believes passionately that we must attempt to secure the best interests of children in society. The presumption that the best interests of children are secured within the family remains intact, as the Minister said. Sadly, however, there are situations where the State must endeavour to supply the place of the parent.

  What struck me in some colleagues' contributions was the longing for a consistency of approach on the part of the Government. Senator Aideen Hayden, for example, referred to the former residents of Bethany Home, one of whom had his short and cogent letter published in The Irish Times yesterday. The Sinn Féin amendments sought to widen the context in which the best interests of children would be the paramount consideration in proceedings to which the State was a party.  This again indicated a desire to ensure people who find themselves in certain situations are not left behind.

  I return to the issue of the unborn, about which I spoke yesterday. Society must be loving and welcoming towards children from the moment of their conception. We must approach all of these matters with a profound reverence for life, pre-born and post-birth, and a desire to vindicate the dignity and welfare of children in all circumstances. We must not lose the goodwill towards this referendum, which is evident not only in the Houses but across society, as it should inspire and motivate us and speak to our consciences.

  I fully endorse the words of my colleagues on the issue of having a 50:50 debate. It need not be a great problem that a large number of people are on one side and a small number of people on the other side of a proposal. The real issue about how the media do their work is whether journalists are willing to put hard, forensic questions of the kind that we, in the Houses, have tried to put. When journalists are forensic one does not end up with biased debates because those who make proposals have their mettle tested, must provide answers and cannot get away with spin or inadequate responses. It will matter less what is the division of opinion on the referendum if the media do their job, scrutinise the proposal and ask hard questions, including those I and others have asked on whether other interpretations are possible and if the wording could have unforeseen consequences. This task is one for the media and if they fulfil it, the requirement to have a 50:50 debate will not be a problem. I was pleased the day the court handed down its judgment in the McKenna case, although it was unfortunate that it came too late in the context of the referendum proposal to which it pertained. The ruling marked a good day for democracy and I would not like if attempts were made to undermine it.

  With those words, I wish the Minister well. When people ask what is my view on this proposal, I will acknowledge the comments of those who argued that that which the proposal is intended to facilitate could be achieved by legislation, although there is still a debate to be had about that issue. I will also stress the sheer appropriateness of enshrining in our Constitution the natural and imprescriptable rights of children as a special category of persons in society. I will also state that I have concerns about some matters and wish certain specific words had been included. However, I will also point out that the use of the phrase "proportionate means" is key. I made this comment on the day the referendum wording was announced. The use of this phrase is welcome and important and it has great centrality in the wording of the proposal.

  On that basis, I wish the Minister and all of those who will speak on the issue the best in the coming weeks as we seek to do our job to facilitate a decision by the electorate. I hope members of the public will seek information about the proposed constitutional amendment as I do not admire the approach that if one does not know, one should vote "No". People should seek to acquire the truth and an in-depth understanding of what is proposed. The Houses have helped that process by asking questions, placing issues on the record and taking the opportunity to comment on the perspectives of others.

Senator Diarmuid Wilson: Information on Diarmuid Wilson Zoom on Diarmuid Wilson On behalf of the Fianna Fáil Party, I welcome the passing of the Bill. My party in this House and the Lower House will work hard to ensure the referendum is passed on 10 November. I hope it will be passed because, as the Minister noted, it will trigger a suite of legislation that will afford protection to children.

  It has been a privilege to listen to the contributions from Senators from all sides who agreed that we have a dark past in which children were abused. I hope that period has come to an end and we will be able to draw a line under it.

  The Minister acknowledged the contribution of her officials, legal advisers, the various political parties and a number of former Ministers from this side of the House. I, too, pay tribute to the late Brian Lenihan, Deputy Brendan Smith and especially Mr. Barry Andrews, all of whom contributed to the legislation in their ministerial roles. However, the Minister left out one important person, namely, herself. She is the right woman at the right time. While I, as a member of the Fianna Fáil Party, would like to see an end to this shabby Government as soon as possible, if there is one reason to keep it in place, it is the Minister.

  Cuireadh agus aontaíodh an cheist.

  Question put and agreed to.

Ráiteas faoi Eolas do Vótálaithe: Tairiscint

Statement for the Information of Voters: Motion

Senator Imelda Henry: Information on Imelda Henry Zoom on Imelda Henry Tairgim:

  GO ndéanfar an ráiteas atá leagtha amach sa Sceideal a ghabhann leis an Rún seo a fhorordú mar fhaisnéis do vótálaithe de bhun alt 23 d’Acht an Reifrinn, 1994 (Uimh. 12 de 1994), i ndáil leis an togra chun Airteagal 42 den Bhunreacht a leasú agus chun Airteagal nua 42A a chur leis an mBunreacht, atá ar áireamh sa Bhille um an Aonú Leasú is Tríocha ar an mBunreacht (Leanaí), 2012, agus is ábhar do reifreann bunreachta.

An Sceideal

Reifreann a bhaineann le Leanaí

Táthar á iarraidh ort vótáil ar an togra chun an Bunreacht a leasú chun Airteagal tiomnaithe a bhaineann le leanaí a áireamh ann. Baineann an tAirteagal atá beartaithe leis an ionad nua a shamhlaítear a bheidh ag leanaí sa Bhunreacht.

Is é atá beartaithe leis an mBille um an Aonú Leasú is Tríocha ar an mBunreacht (Leanaí), 2012 -

(a) an t-alt seo a leanas a scriosadh as Airteagal 42 den Bhunreacht:
‘5 I gcásanna neamhchoiteanna nuair a tharlaíonn, ar chúiseanna corpartha nó ar chúiseanna morálta, nach ndéanaid na tuistí a ndualgais dá gclainn, ní foláir don Stát, ós é an Stát caomhnóir leasa an phobail, iarracht a dhéanamh le beart oiriúnach chun ionad na dtuistí a ghlacadh, ag féachaint go cuí i gcónaí, áfach, do chearta nádúrtha dochloíte an linbh.’, agus
(b) an tAirteagal seo a leanas a chur isteach i ndiaidh Airteagal 42:

‘LEANAÍ

Airteagal 42A

1 Admhaíonn agus deimhníonn an Stát cearta nádúrtha dochloíte na leanaí uile agus ní foláir dó na cearta sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.

2 1° I gcásanna neamhchoiteanna nuair a tharlaíonn nach ndéanann na tuistí, gan beann ar a stádas pósta, a ndualgais dá gclann sa mhéid gur dócha go ndéanfar dochar do shábháilteacht nó do leas aon linbh dá gclann, ní foláir don Stát, ós é an Stát caomhnóir leasa an phobail, iarracht a dhéanamh, le beart comhréireach mar a shocraítear le dlí, chun ionad na dtuistí a ghlacadh, ag féachaint go cuí i gcónaí, áfach, do chearta nádúrtha dochloíte an linbh.
2° Déanfar socrú le dlí chun aon leanbh a uchtáil i gcás nach ndearna na tuistí a ndualgais don leanbh ar feadh cibé tréimhse ama a ordófar le dlí agus nuair is riachtanas ar mhaithe le barr leasa an linbh é.
3 Déanfar socrú le dlí chun aon leanbh a shuíomh go saorálach le haghaidh uchtála agus a uchtáil.

4 1° Déanfar socrú le dlí go measfar, le linn na n-imeachtaí uile -
i a thabharfaidh an Stát, ós é an Stát caomhnóir leasa an phobail, chun nach ndéanfar dochar do shábháilteacht ná do leas aon linbh, nó

ii a bhaineann le huchtáil, caomhnóireacht nó coimeád aon linbh, nó rochtain ar aon leanbh,
a réiteach, gur ní ró-thábhachtach é barr leasa an linbh.

2° Déanfar socrú le dlí chun a chur in áirithe, sa mhéid gur féidir é, go ndéanfar sna himeachtaí uile dá dtagraítear i bhfo-alt 1° den alt seo i leith aon linbh ar féidir leis nó léi teacht ar a bharúlacha féin nó ar a barúlacha féin, barúlacha an linbh a fháil agus tromachar cuí a thabhairt dóibh ag féachaint d’aois agus d’aibíocht an linbh.’.
MÁ THOILÍONN TÚ leis an togra, cuir X os coinne an fhocail TÁ ar an bpáipéar ballóide.

MURA dTOILÍONN TÚ leis an togra, cuir X os coinne an fhocail NÍL ar an bpáipéar ballóide.

Is féidir cóip den Bhille a iniúchadh nó a fháil saor in aisce in aon Phost-Oifig. Is féidir breathnú air freisin ar an idirlíon ag www.oireachtas.ie.

  I move:

  THAT the statement set out in the Schedule to this Resolution be prescribed for the information of voters pursuant to section 23 of the Referendum Act 1994 (No. 12 of 1994), in relation to the proposal to amend Article 42 of the Constitution and to add a new Article 42A, which is contained in the Thirty-first Amendment of the Constitution (Children) Bill 2012 and is the subject of a constitutional referendum.

Schedule

Referendum relating to Children

You are being asked to vote on the proposal to amend the Constitution to include a dedicated Article relating to children. The proposed Article relates to the newly envisaged position of children in the Constitution.

The Thirty-first Amendment of the Constitution (Children) Bill 2012 proposes -

(a) to delete the following section from Article 42 of the Constitution:
‘5 In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.’,
and

(b) to insert the following Article after Article 42:

‘CHILDREN

Article 42A

1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.

2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.
2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.
3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings -
i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or

ii concerning the adoption, guardianship or custody of, or access to, any child,
the best interests of the child shall be the paramount consideration.

2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.’.
IF YOU APPROVE of the proposal, mark X opposite the word YES on the ballot paper.

IF YOU DO NOT APPROVE of the proposal, mark X opposite the word NO on the ballot paper.

A copy of the Bill can be inspected or obtained free of charge at any Post Office. It may also be viewed on the internet at www.oireachtas.ie.

  Cuireadh agus aontaíodh an cheist.

  Question put and agreed to.

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke When is it proposed to sit again?

Senator Maurice Cummins: Information on Maurice Cummins Zoom on Maurice Cummins Ar 10.30 maidin amarách.

Adjournment Matters

Schools Amalgamation

An Cathaoirleach: Information on Paddy Burke Zoom on Paddy Burke I welcome the Minister of State at the Department of Agriculture, Food and the Marine, Deputy Shane McEntee. I understand Senator Cullinane has agreed to allow the matter raised by Senator Conway to be taken first.

Senator Martin Conway: Information on Martin Conway Zoom on Martin Conway I thank my good friend and colleague, Senator Cullinane, for facilitating me as I am under a little pressure. I raised the proposed amalgamation of three secondary schools in Ennistymon, County Clare, last April. The town has a secondary school population of 670 pupils which is split between three schools, a vocational school, a convent, Scoil Mhuire, and a Christian Brothers school. All three schools have been given a commitment that the amalgamation of the three schools will proceed. The teachers and parents were informed almost 30 years ago of plans to merge the schools. I attended one of the schools in the late 1980s and early 1990s and even then amalgamation was a political and educational issue. The commitment must be met to ensure the quality of the teaching staff in the schools in question is nurtured and proper facilities provided.

  Students must tramp from one school to another in pouring rain and unacceptable conditions. Given that the three schools are located in different parts of the town, students taking science subjects must travel to one of the schools, students studying humanities must visit a second school and students taking mechanical drawing or woodwork must travel to another school. Pupils are criss-crossing the town every day in all sorts of inclement weather. The amalgamation must, therefore, be prioritised.

  In 2005, the then Government announced the school would be built by 2010. While sites have been identified, little further progress, if any, has been made.  There was a meeting of the chairs of the boards of management, the principals and the trustees of the three existing post-primary schools which, unfortunately, I could not attend because of prior commitments in Dublin. It is becoming an important issue that needs to be dealt with. It would be a good investment because, not alone would it create construction jobs in the short term, it would ensure a quality education service in north Clare for the long term. That, in turn, would mean facilitating a proper investment in our young people’s future. I hope the Minister has some positive news in that regard.

Minister of State at the Department of Agriculture, Food and the Marine (Deputy Shane McEntee): Information on Shane McEntee Zoom on Shane McEntee I am taking this matter on behalf of the Minister for Education and Skills. I thank the Senator for once again raising this particular matter as it provides me with the opportunity to outline the Government's strategy for capital investment in education projects, as well as providing the Senator with the up-to-date position on the application for major capital funding for the proposed community school in Ennistymon.

  The Department of Education and Skills is forecasting the number of pupils in post-primary schools will expand by over 25,000 by the beginning of the 2018 school year. It is expected that numbers at post-primary level will continue to increase until at least 2024. To be in a position to cater for the growing population of schoolgoing children, the delivery of new schools, together with extension projects to existing school buildings at both primary and post-primary levels, has to be the main focus for capital investment in the coming years.

  The three post-primary schools in Ennistymon have agreed to amalgamate to form a new community school. I commend the work of those schools, the staff, boards of management, their patrons and the wider community in that regard. It is intended that a new school building to accommodate the new community school will be developed. The acquisition of land to have a site suitable for the development of a building for the new community school is being progressed by the Department of Education and Skills through the Chief State Solicitor's office in conjunction with the current landowners. The land in question is in addition to lands already in the Department’s ownership.

  When taken together, there will be sufficient land to meet the overall site requirements of the new community school. It is not possible to give a definitive timeframe within which the acquisition will be finalised. However, I can assure the Senator the Department of Education and Skills is working to ensure the site is acquired as quickly as possible.

  Once the site has been secured, the building project will be considered for progression in the context of available resources. To ensure every child has access to a school place, the delivery of major new school buildings, together with extension projects to existing schools to meet the type of demographic demands to which I have referred, will be where capital investment in schools is concentrated in the coming years. The five-year programme announced earlier this year is focused on meeting those demographic needs. It was not possible to advance all applications for capital funding concurrently. However, I can assure the Senator that work is ongoing in the acquisition of land to ensure that a suitable site is available for the proposed new community school building. I again thank the Senator for giving me the opportunity to outline to the House the current position regarding the proposed new community school in Ennistymon.

Senator Martin Conway: Information on Martin Conway Zoom on Martin Conway I thank the Minister of State for his comprehensive response. I hope we will see progress with this project in the coming months as opposed to years. When the land acquisition has progressed, hopefully the funding from the Department will be ring-fenced to ensure construction of the new school will occur as a priority.

University Status Applications

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane I make a direct appeal, on behalf of the people of Waterford and the south east, to the Minister of State and the Government to expedite the placement of a university in the region. We have had a long-running campaign for a university for the south east, jumping over all the hurdles and through all the hoops over the years. Numerous reports, including the Hunt report, have been favourably disposed to Waterford Institute of Technology becoming a university for the south east.

  The region has one of the highest unemployment rates in the country at 19%, which is 5% above the national average. We have a real crisis of unemployment, as well as underemployment, in the south east. There is a real danger of Waterford city and county councils being forced to amalgamate which will, in turn, downgrade the gateway and city status of Waterford. It is critically important the Government makes the right decisions for Waterford and the south east on all of these issues.

  The Minister and the Higher Education Authority, HEA, commissioned an expert group to examine higher education. Its report, which has been leaked, recommends a national university with a campus to be based in both Dublin and Waterford. It is important the Minister does not let this report sit on the shelf but publishes it in order that we can all examine the proposals about the national university, as well as the impact it may have on Waterford. We do not just want a name change but a university that has the capital, finance, autonomy and the ability to meet the needs of the south east. In a recent jobs announcement in Limerick, the company involved said one reason it chose the location was because of the university there. We see jobs announced for Dublin, Cork and Galway but precious little for Waterford. It makes sense to the people there that they are disadvantaged because they do not have a university. The previous Government failed to deliver a university for Waterford. The Government has the opportunity to deliver on this not just for the people of Waterford but for the people of the south east.

Deputy Shane McEntee: Information on Shane McEntee Zoom on Shane McEntee I thank the Senator for getting his point across without having to read any notes. Waterford Institute of Technology has a good name and I understand the Senator’s point.

  The Government has endorsed the national strategy for higher education to 2030 which was published in early 2011 as the roadmap for the future development of our higher education system. The objective of the higher education reform programme that is being pursued is to create a more flexible and outward facing higher education system, one which is responsive to the diverse needs of students and society and delivers a high quality student experience. The reform programme will require several system changes to support these objectives. These will include: the development of a smaller number of higher education institutions of significant strength and critical mass governed according to best modern practice; a sustainable system of funding to allow for further growth and development with public funding more aligned to national priorities and needs; and a more performance-oriented system with much more transparent data flows to assess outcomes and impacts and strengthened accountability for institutions according to agreed performance contracts.

  The implementation of the reform programme is being overseen by an implementation group chaired by the Secretary General of the Department of Education and Skills. A detailed implementation plan, updated regularly, is published on the Department's website. As part of the implementation process, Towards a Higher Education Landscape, published in February 2012, initiated a process of engagement by the HEA with higher education institutions with a view to providing the Minister with advice on how the higher education system should be configured to deliver on the objectives of the reform programme as provided for in the strategy and further articulated in the landscape documents. As part of this process, all publicly-funded institutions were asked to make submissions to the HEA on their future strategic development within the system. The HEA has also commissioned several other inputs, including from a panel of six international experts and the ESRI. When the process of analysing the institutional submissions against the objectives and recommendations in the national strategy and the landscape documents is completed, the HEA will publish the inputs it has received.

  Regarding the evolutionary pathway laid out in the national strategy for institutes of technology, the landscape document also sets out a clear four stage process and criteria for institutes of technology which wish to apply for designation as a technological university. This process and the criteria have been endorsed by the Government.

Senator David Cullinane: Information on David Cullinane Zoom on David Cullinane The Minister of State is taking this debate on behalf of the Minister for Education and Skills. The response says a lot, but says nothing. It speaks of more process, more delay and more analysing. That is the last thing the people of Waterford and the south east need.

  There is much in that Higher Education Authority report of which the Minister of State spoke. It talks about other institutions in the State. There is a great deal of opposition to some other mergers contained in it and I hope that the issue of a university for the south east does not become lost in a bigger battle taking place among other institutions and universities, and that university politics does not come into play and prevent the people of Waterford from getting what they need.

  The people of Waterford will not tolerate more delays. We do not need more analysis. The case is compelling and unassailable. For all of the following reasons - our critical mass, the fact we are not operating on a level playing field and the fact we have one hand tied behind our back in the south east - we need a university. I ask the Minister of State to use his influence in the Cabinet and talk to the Minister for Education and Skills to ensure that the issue of a university for the south east is not lost in some bigger battle that might play out in terms of reforming higher education in the State.

Deputy Shane McEntee: Information on Shane McEntee Zoom on Shane McEntee As the Senator stated, the politics within universities goes back a long time in Ireland and sometimes that mould must be broken. I will deliver the message directly to the Minister, Deputy Quinn. I urge the Senator to continue his fight because if he keeps at it, it always works out.

Noxious Weeds

Senator Mary Ann O'Brien: Information on Mary Ann O'Brien Zoom on Mary Ann O'Brien I thank the Minister of State, Deputy McEntee, for attending. I want him to imagine that he is getting severe stomach pains and losing weight fast, and he stops eating and has no energy. The sun hurts his skin, he is losing co-ordination and he is struggling to breath. Now he is going blind and, worst of all, he cannot tell anybody or communicate how bad he is feeling. That is how a horse feels after it has eaten ragwort.

  A horse need not eat much ragwort. Horses can eat a tiny amount and within a couple of days, as the Minister of State will be aware, it damages their liver. There is no way an expert or a veterinarian can tell whether horses have this condition.

  We have had a nice summer and we are back after our break. I was luck as I got to visit Kerry, Roscommon, the west and Waterford. I have never seen such a summer of ragwort. If we were harvesting ragwort, or if we could do something with it to make money, we would be making a fortune.

  I am here because I am passionate about the horse industry in Ireland, particularly the sport horse industry. Goffs bloodstock sales are on this evening. It is the biggest sale of the year. The thoroughbred racing industry is of significant importance. We are best in class globally at that industry.

  Obviously, cows get affected by eating this noxious weed as well. I do not want to step on the toes of farmers living around me but there are some for whom it is merely a joke. They are not bothering to spray it or pull it. What is the Minister thinking of doing about this problem? Will he introduce legislation that will include a preventive measure that would really hurt those who are ignoring it and letting their land?

Deputy Shane McEntee: Information on Shane McEntee Zoom on Shane McEntee I thank the Senator for tabling the motion. When I was asked this morning to take the Adjournment debate, I asked what was it about and they said, "Ragwort", and I was delighted to hear it. I am not saying this merely because Senator Mary Ann O'Brien is sitting here. During the summer, I was disgusted when driving up the Ashbourne bypass to see the amount of ragwort in the middle of the road.

  I come from a farming background where one of the chores every summer was for three or four of us to be sent out to pull the ragwort. Sometimes it would come easy and sometimes it would cut the hands off you. After that, one had to go and see whether any yew trees had grown over the previous summer.

  I am very much aware of the effect ragwort has on animals, especially when it is cut with a mill and left on the ground. I suppose if an animal is hungry enough, it will eat it. However, when it is cut, it sweetens, and if it is lying for a day or two and one does not pick it up out of the swath, one is in trouble.

  People have a responsibility to pull ragwort or spray it just like thistles, and we have neglected this for a long time. It is up to local authorities as well. One is not squealing on anybody when he or she telephones to say there is ragwort and asks what the person is doing about it. There are named noxious weeds for which what has to be done is set out and people should be urged to do it. It destroys a field, it is ugly but, most important, as the Senator correctly stated, is what it does to an animal. I am delighted that the Senator brought the matter up. I would urge farmers in this regard because nowadays they have a responsibility to have the correct plants growing in their ground. I will give the Senator the Minister's exact response.

  The Noxious Weeds Act 1936 provides for the control of the spread of six noxious weeds, namely, thistle, dock, common barberry, wild hop, oat plants and, the most commonly and the most frequently mentioned of the species in the Act, ragwort. Ragwort is a highly poisonous plant as what it contains can cause serious damage to the liver of farm animals. The only way to safeguard against loss from ragwort poisoning is to eradicate the weed, either by pulling, ploughing, cutting or chemical control.

  Under the Act, it is an offence not to prevent the spread of these weeds. The owner, occupier, user or managers of lands on which these weeds are present are subject to the provisions of the Act, including a fine of up to €1,000 on conviction.

  The Department seeks to enforce the provisions of the Act by the issuing of destruction notices in all instances where it becomes aware of the presence of such weeds. Some 35 such notices were issued in 2011 with a further 43 having been issued to date in 2012. These notices are issued as a result of inspections carried out by Department field officials or on the receipt of complaints made by the public. Follow-up action may be taken by officials with the landowner to ensure compliance with the destruction notices is effected and that the particular weed in question has been dealt with as stipulated.

  Additionally - it is important that this point be emphasised - under the EU single farm payment scheme, farmers are obliged to keep their lands free from noxious weeds under the cross-compliance measures set down for farming practices. Failure to do so can result in the application of a reduction of their payment entitlement. While figures for the number of penalties for the current year under the scheme are not yet available, in the years 2009 through 2011, a total of 104 such reductions were applied to farmers for failing to take the appropriate measures to prevent the proliferation of the such weeds.

  While the Act makes provision for taking prosecutions against offenders, this measure has not been resorted to in recent years. Modern farming has reached a level of specialisation and intensification which makes weed control a fundamental and automatic practice. Therefore, with the few exceptions I have mentioned, the problem of noxious weeds on farms has diminished in recent times. However, the prevalence of ragwort found along the margins of roadways and in locations such as derelict sites regrettably appears to have increased.

  In this context, the Department continues to engage with all county and local authorities, together with the National Roads Authority, to address the issue of the presence of such weeds in public areas and on roadsides, and to ensure a consistent programme of treatment and safe disposal of such weeds on an ongoing basis. In this regard, officials in the Department have been in contact with each of the county and local authorities early this year, re-emphasising both the importance of early treatment and safe disposal in order to minimise the risk of spreading and the prevention of further spread of the weed.

  In recent years the Department has undertaken a number of public information campaigns to raise awareness of the impact of such weeds and the importance of controlling their growth from the perspective of reducing their spread through the promotion of best practices. In addition to the farming sectors, these campaigns have also been aimed at promoting awareness of non-traditional land users such as land for development, etc.

Senator Mary Ann O'Brien: Information on Mary Ann O'Brien Zoom on Mary Ann O'Brien I thank the Minister of State for the good, detailed answer. While it is comforting, I hope he would agree that everyone from a rural area with whom one speaks will say that this was the year of the ragwort. Each plant produces 50,000 to 200,000 seeds over a four to six week period from July to September. Particularly now that the flowers are dying down, I am conscious of the seeds.

  I am glad he mentioned the local authorities but he barely mentioned the NRA. I sit on Kildare County Council's audit committee and, as far as I am aware, the county councils are not in charge of the motorways, the NRA is. The motorways, as the Minister of State will be aware, have become famous for the yellow flowers which, unfortunately, are not daffodils which grow in the spring. At present, there is a great deal of ragwort and the seeds are blowing over fields, even into good farms.   The Minister of State's answer was very conclusive. Are we going to be proactive? A total of 40 people were notified this year but these people need to be fined. Their single farm payment must be reduced or taken away. I dealt with ragwort on my farm and farmers know that they need to go out and pull it up or spray it. The farmer next door to me has a beautiful farm because he sprays it regularly. He says that he does not have the time to go out and pull it up but it can be done. In the context of Bord Bia's beautiful Origin Green initiative, which highlights our beautiful country, I urge the Minister to clamp down and be more proactive with punishment.

Deputy Shane McEntee: Information on Shane McEntee Zoom on Shane McEntee The fact that the Senator has raised the matter is a start. I hope the matter will not be just left here but will be brought to the attention of the wider public. I do not doubt what the Senator is saying because I have been up and down the country this year and it is in a mess with ragwort. The NRA has a lot to answer for. It spends more time preventing businesses from setting up along the roads than doing what it is paid to do. It would suit it a lot better to do its job and I make no apologies for saying that.

  From a farming point of view, the cutting of hedges is important. County councils notify people and are reluctant to fine them. If they are notified to do it, farmers will respond. If they are let away with it, they will get away with it. Everybody in the farming community knows that things are tight but if they are asked to do it, they will. The fact that the Senator has raised this issue is good. When I saw ragwort during the summer I was slow to have a go at somebody about it. I assure the Senator that I will bring the matter back to my Department and make it a priority.

Bus Services

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney Cuirim fáilte roimh an Aire Stáit. I thank the Cathaoirleach for selecting this issue because the timing is important. Behind the motion lies a very real concern about the effect on people in various parts of the country of a decision taken by Bus Éireann a number of weeks ago, which only came into the public domain in the last week to ten days. The company intends to reduce the amount of accessible bus stops across a variety of Expressway routes in Ireland. It is doing this because the Expressway service is not subsidised, which I ask the Minister to explain. I thought the general subsidy to Bus Éireann covered all of its services. The company has said it does not and, consequently, it is competing with private operators and needs to make its services more efficient.

  As a result of the elimination of bus stops along the Expressway routes, which had been serving, admittedly, a small number of people, such people are now going to be denied access to the service. These people are primarily in the lower socio-economic groups and are mostly elderly people who rely on public transport. I have heard reports about people in County Wicklow who will now have to walk over a mile to get a bus. That is not acceptable. In my own part of the country, the matter was brought to my attention by a local councillor, Mr. Seán McGowan, who lives between the villages of Dromod and Rooskey on the N4. A number of passengers were being collected and alighting from the Expressway service there and had come to rely on it. Now they are going to be denied that service. The argument is that there is an Iarnród Éireann station at Dromod which they can access but it is a matter for speculation as to whether such changes will make the route more efficient. Councillor McGowan has argued at council level and in the local media that the amount of time saved as a result of coming off the N4 to pick up and drop off passengers would be minimal. He has also proposed that of the five services a day that are on the N4 between Sligo and Dublin, one in the morning and one in the evening could be retained.

  However, this is a policy issue and not just a question of efficiency. Such is the concern that this morning at the meeting of the Joint Committee on Transport and Communications, all committee members, of all parties and none, unanimously agreed that a letter would be sent to Mr. Martin Nolan, the CEO of Bus Éireann, asking that the company suspend the implementation of its amended timetable, which is due to be introduced on 7 October, until a representative comes before the committee to explain and justify the company's actions. The committee also agreed to communicate with the Minister for Transport, Tourism and Sport on the matter.

  I am highlighting this issue, which is predominantly a rural one. When I say rural, I mean non-Dublin because the Expressway service goes into all of the major cities in the country. I raise the matter to highlight it and also to try to ascertain the view of the Minister. I assume the Minister is aware of the issue and I wish to know what steps, if any, he has taken to convey to the board and management of Bus Éireann the concerns that have been expressed to him by Deputies and Senators of all parties.

Deputy Shane McEntee: Information on Shane McEntee Zoom on Shane McEntee I thank the Senator for raising this matter and note that the Joint Committee on Transport and Communications discussed the issue this morning. As I come from the poor end of County Meath, namely, the Kells district, where there are more roads than in the rest of the county, I know what the Senator is talking about with regard to people being isolated. What amazes me is the fact that in places like north Meath, Cavan and elsewhere, buses are going up and down the road with only one or two people on them. Departments must work together and companies, whether they be public or private, will have to start working together. That said, people do need a bus service and I appreciate where the Senator is coming from.

  I am taking this Adjournment debate on behalf of the Minister for Transport, Tourism and Sport, Deputy Varadkar, who is out of the country on official business. It must be stated that the Minister has no personal or ministerial power when it comes to bus routes and route frequencies operated by Bus Éireann. The provision of bus services and the routes they take are operational matters for the company, in conjunction with the National Transport Authority, NTA. However, as the Government is the sole shareholder in the CIE companies, the redesign of this and other Bus Éireann routes is something that the Minister is aware of and he has made inquiries with the company on the matter.

  It should be noted that Bus Éireann operates a mix of services. It operates the school transport programme for the Department of Education and Skills. Furthermore, along with the other two CIE companies, it has the contract to 2014 from the NTA to run the public service obligation transport network. In return for this contract, the CIE companies receive a subvention known as the public service obligation, PSO, payment. This payment is so that Bus Éireann can provide important and necessary bus services that would otherwise not be viable.

  In addition to the above, Bus Éireann also operates commercial services. These commercial services are in competition with private operators and do not form part of the PSO network. Bus Éireann does not receive a subsidy, either directly or indirectly, for these commercial services. Bus Éireann's inter-urban bus services, known as Expressway, are part of these commercial services. Unfortunately, the Expressway services were not as direct as their competitors. The recession has had a very big impact on the company in terms of a reduction in both revenue and passenger numbers. Also, new and better motorway infrastructure has played its part in changing the expectations of the customers on Expressway routes. Therefore, to gain competitiveness, Bus Éireann has had to redesign its Expressway service to make it more attractive to consumers. The Minister appreciates that changes to the bus services will inconvenience some passengers. However, given the financial position that Bus Éireann and the CIE companies find themselves in, there is no alternative for the companies but to ensure that commercial services operate on a commercial footing and that, unfortunately, limits their scope for changing the services.

  More broadly, rural transport is a critical component of public transport services and it is vital for the development of a fully inclusive society, both from a social and economic perspective. In January last, the Government approved new arrangements for the development and implementation of integrated local and rural transport services. It was decided that the NTA would be assigned national responsibility for local and rural transport services integration, including the rural transport programme, RTP, and this has been effective since 1 April 2012.

  This new role for the NTA, coupled with its existing national remit for securing the provision of public passenger transport services, will enable the development of better links between local and rural services and scheduled bus and rail services. This is something which is fundamental to a wholly integrated transport network. Local integration working groups have been established in some areas, while in others, RTP groups have been working informally with potential partners to identify transport integration opportunities. Work has commenced on the inclusion of the RTP services in the national journey planner and the inclusion of RTP and school transport services in reviews of public transport services being undertaken by the NTA in the south eastern regional authority areas, the Border, midland and west area and the south and mid-west area. Consideration of RTP services in these reviews will serve to highlight transport needs and offer opportunities for integration.  The integration process is set to achieve the efficiencies required in the face of the country's challenging fiscal climate. Some of the challenges are complex, involve multiple players and give rise to matters not always within our control. Integration can deliver a more complete and effective transport service in local and rural areas which will be better at meeting the transport demands of all users. The Minister acknowledges the concerns expressed regarding the impact on certain passengers of the redesign of Expressway routes and has asked the chief executive of Bus Éireann to brief Oireachtas Members on the changes to services in the north west. He will also ask the NTA to take account of locations which will no longer be served by commercial services in its ongoing reviews of public service obligations. It should be noted that future cuts to the level of subvention for public service obligation public transport will, however, limit the scope for the addition of new services.

Senator Paschal Mooney: Information on Paschal Mooney Zoom on Paschal Mooney I am grateful for the comprehensive reply given by the Minister of State and acknowledge that the Minister, Deputy Leo Varadkar, is not only aware of the issues arising but has also been proactive in addressing them. I hope the NTA will now consider the revised arrangements with a view to integrating rural transport services for those who are going to be denied access to public transport. The changes will primarily affect those who are most vulnerable and do not have access to private transport. From that point of view, I am grateful that there may be some hope of alleviating the pressure on them.

Deputy Shane McEntee: Information on Shane McEntee Zoom on Shane McEntee The Senator referred to the Oireachtas committee that met this morning. Sometimes I find Oireachtas committees to be more powerful than the main Chambers. I would like to think the Senator's request will be considered, as there are too many empty buses on the road, like the milk lorries in our area several years ago when five milk lorries from five companies could have been travelling along the same route. It does not make sense. It is a question of co-operation and making the best use of the money available.

  The Seanad adjourned at 7.20 p.m. until 10.30 a.m. on Thursday, 4 October 2012.


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