Alex White law Archives

Labour Bill to bring law in line with reality

15th March 2010

Speaking at the Launch of Labour’s ‘Guardianship of Children Bill 2010’

The Bill we are publishing today will bring our law and practice into line with the reality of life for many thousands of families in Ireland.

Largely because of the peculiarly strong Family provisions in Article 41 of the Constitution, we have failed to recognise that very many people nowadays live in stable and loving relationships and families which are not families in the traditional sense.

The emphasis in the Bill is not on competing or conflicting rights of parents, but rather on the rights of the child to the care and responsibility of both parents - married or not.

It will bring Ireland into line with important provisions of the United Nations Convention on the Rights of the Child and also the European Convention on Human Rights.

Taken together with the significant potential for enhancing children’s rights represented by the proposed Children’s Rights amendment to the Constitution, this Labour Bill would bring a very real advance for children. It would also confer legal recognition in a more equitable fashion on the responsibilities of both parents for the care and upbringing of their children.

More :: Guardianship of Children Bill 2010

Committee’s proposals for a children’s rights amendment

25th February 2010

Minister for Children Barry Andrews came to the Seanad chamber last night in order to discuss the Final Report of the Joint Committee on the Constitutional Amendment on Children. This was my contribution to the debate.

I welcome the Minister of State on the occasion of the publication of this extremely important report which is founded on a high level of consensus across the political divide. I endorse the comments of my colleagues regarding the input of all parties into the report. In particular, I commend the Minister of State on his consistent engagement and regular attendance at committee meetings. The commitment shown by Senators in the committee’s deliberations was exemplary and undermines any argument that might be made for abolishing this Chamber.

This issue is characterised by complexity and, often, the presumption of disagreement even where it does not exist. People assumed on the basis of history that certain things cannot be changed but when we began to examine in detail what words actually mean, it was funny how quickly we were able to progress towards agreement. The Minister of State clearly outlined the achievements made in terms of the proposed wording. If this amendment is implemented, we would have a Constitution which protected children as the holders of autonomous rights. It would be a misnomer to say we are putting children’s rights into the Constitution for the first time but we want to ensure they have rights in and of themselves and not just mediated through their membership of families.

The Minister of State has regular dealings with all the organisations engaged with children’s rights and advocacy, including the Children’s Rights Alliance and Barnardos. These organisations offered significant support to the committee and in some cases made multiple submissions. Their universal welcome for the outcome of our deliberations is in itself a measure of the extent to which progress has been made in the course of our work.

In regard to Senator O’Toole’s remarks, it would be more accurate to say the committee proposes to revise Article 42 rather than insert a completely new article because some of the existing wording is retained. This may give rise to confusion in some quarters during the debate. The provisions dealing with primary, physical, moral and intellectual education which are already in the Constitution are simply lifted into this new proposal. The committee debated whether we should unpick the provisions on education or include a right to secondary education. Several colleagues even argued for the inclusion of a right to third level education. However, members did not feel the terms of reference of the committee extended that far and I believe we reached the correct conclusion. The Bill published in 2007 delineated to a considerable extent the work of the committee. A major debate remains to be had, not least in the context of the Constitution, regarding the right to education but it was not within our remit to make proposals in regard to the sections we lifted from Article 42. We have not dropped the word “physical” because the provision in question was simply left unchanged.

Child Care Bill a case study on failures in public policy

5th February 2010

The Child Care (Amendment) Bill 2009 was discussed in the Seanad this week. The Bill provides a statutory scheme for the High Court to have exclusive jurisdiction to hear special care cases, abolishes the Children Act Advisory Board (CAAB), and makes a number of changes to the 1991 Child Care Act.

A number of other bodies took the trouble to brief Members on the Child Care (Amendment) Bill 2009. The information they provided has proven extremely useful to Members as they consider the Bill. It is always of assistance when interested bodies take the time to prepare briefings, meet Members and share with them their experiences and also the difficulties they perceive in respect of the practical, day-to-day operation of agencies, services of the State, etc. relating to children and also the problems they believe may arise in the context of legislation being brought forward.

Focus Ireland took the trouble to provide briefing information. To some extent, that organisation’s document provides an answer to the question posed by others in respect of the possible or potential cost to the State if aftercare services were to be placed on a statutory footing. It is not possible to make a direct analogy with Northern Ireland in this regard. However, the example of Northern Ireland was the best Focus Ireland could provide in estimating the ultimate cost. Focus Ireland indicates that the equivalent cost of providing the range of aftercare services available in Northern Ireland in the Republic of Ireland would be just under €11 million per annum. That figure is based on a total of 411 care leavers per annum. If it is possible for Focus Ireland to quantify the cost, it should also be possible for the Minister of State to do so. I agree with those who stated that it would be important to place aftercare services on a statutory footing in order that there might be some expectation among people of their being available. It is also important that proper controls, guidelines and supervision be put in place in respect of such services.

The Bill is welcome. However, it provides a curious case study in respect of failures in public policy. I do not lay all the blame for such failures at the door of the Minister for Children. These failures date back many years, perhaps even a number of decades. The Minister may wish to reflect on this and refer to it in his reply.

Courts left to ‘plug the gap’ in assisted human reproduction law

17th December 2009

We need to clarify the Minister for Health and Children’s comment on Tuesday in respect of a commitment on the part of the Government to introduce legislation to regulate assisted human reproduction. The Supreme Court made an extremely important decision in which it again pointed to a failure on the part of the Houses of the Oireachtas to implement legislation in this area. Once again, the Supreme Court has had to plug the gaps outrageously left by us, the legislators. The Government is primarily responsible for introducing legislation in this area.

When decisions such as the Supreme Court ruling of yesterday are made, it is often argued that there are many views and significant disagreement on the issue in question. I anticipate that government members may make the perfectly reasonable argument that assisted human reproduction is a complicated issue. While there are many views on it, the responsibility of legislators is not to sit back and do nothing, as we have done many times when it became clear there were many views on an issue, but to face up to the fact and work out carefully and meticulously, perhaps in committee, how precisely we should legislate. Assisted human reproduction is an important and sensitive issue on which legislation should be introduced at the earliest possible time.

No excuses for rushing important legislation

3rd July 2009

Why is it that for many weeks there is little or legislation before the House but in the two or three weeks before the end of the session there is an extraordinary flurry of activity with measures being introduced and pushed through both Houses as is happening again now? Why is it that the Minister, the Department or those who manage the flow of business to the Houses cannot pace themselves a little better throughout the year? Why can legislation not be introduced in the House periodically in a manner that will allow it to breathe, as it were?

The Leader of the Seanad often says he does not guillotine legislation and that is true, but that misses the point. It is not a question of saying we can have an hour or two to read the legislation but of allowing the public to consider important legislation over a period of weeks. I am not suggesting that the Government never makes an effort to do that. In fairness, it does. However, that should be the universal approach to legislation, unless it is genuinely emergency legislation which must be put through the Houses in a period of days.

I have in mind some of the criminal justice legislation we are dealing with this week. There are two Bills this week and I presume the Criminal Justice (Amendment) Bill will be introduced in the House next week. The latter includes proposals for the considerable curtailment of the liberty of the citizen. It may well be that this is justified and that Members of the House support it but it is one of the most serious actions a parliament can take. The guarantee of last September is probably the most serious action a parliament can take in that it mortgages the future and future generations. However, in terms of the liberty of the citizen the proposed legislation provides for the expansion of the use of the Special Criminal Court and removing the important protection that juries provide.

I disagree regarding any further restriction on the use of juries. In the criminal context, in particular, it is a further restriction on the liberty of the individual, as is the introduction of secret hearings in the District Court regarding detentions and so forth. I appeal to the Leader to ensure, especially with legislation of this nature, that the public and the Houses be given an opportunity to consider such legislation over a longer time span. It should certainly be over a period of weeks and not days, as is now being proposed.

Mugabe has no respect for rule of law in Zimbabwe

2nd July 2008

Yesterday, a debate took place in the Seanad on the current situation in Zimbabwe. Below is my own contribution to the proceedings:

On behalf of the Labour Party in this House I join my colleagues in what has been said. I especially welcome the clarity of the Minister’s address to the House when he rightly described the election as an obscene charade and stated clearly and without equivocation the Government’s rejection of this sham election. He correctly stated that the Members of the Oireachtas and the Irish people are rightly appalled by what has happened in Zimbabwe and the Government’s unequivocal position is that the results of last Friday’s vote cannot be regarded as legitimate or in any way constituting the democratic and free expression of the Zimbabwean people’s will. This is important point for us as politicians giving leadership.

The Minister also correctly said the principle of free and fair elections is a fundamental cornerstone of democracy. That is true, but another cornerstone of democracy is the rule of law. For years we have known that Robert Mugabe and his Government have no respect for the rule of law. I was in a privileged position this weekend. I have just returned from Belfast where I attended the World Bar Conference of the International Council of Advocates and Barristers, ICAB, which was held jointly in Belfast and Dublin. We had the great privilege of hearing from a Zimbabwean lawyer, Ms Beatrice Mtetwa, as reported in today’s newspapers. She informed the lawyers gathered from all over the common law world of the insanity and complete breakdown of any sense of respect for rule of law throughout the court system and the absence of respect for even remnants of an independent media. She gave an astonishing sense of a society which has completely disintegrated in terms of any recognisable features of a democracy as we understand it.

I ask the Leas-Chathaoirleach to allow me the indulgence to tell my colleagues of a unanimous resolution passed yesterday afternoon by lawyers gathered at this conference representing the bars of Australia, England, Wales, Hong Kong, Ireland, Namibia, Northern Ireland, Scotland, South Africa and Zimbabwe, being member bars of ICAB. I will briefly read the resolution because it isolates and identifies the key issues in Zimbabwe and points to something positive that can be done. Despite the despair there are some actions. The question we all asked our colleague from Zimbabwe at the weekend was whether there is anything lawyers, politicians, citizens and media people can do. There is a despair regarding the response that was forthcoming.

The resolution includes a number of points. First, as we have done here, is “to deplore the defiance by the Government of Zimbabwe of its human rights obligations under domestic and international law”. The second resolution is “to call upon the secretariats of the Southern African Development Community, the African Union [most importantly] and the United Nations to initiate all steps necessary to procure the return of the rule of law to Zimbabwe and respect by the Government of Zimbabwe for the rule of law”. This is a crucial point which the Minister’s speech touched on and he is correct. It is unusual to have to call on a government to respect the rule of law, but that is the case in Zimbabwe with a complete breakdown of the courts system and any respect for the rule of law.

The third point in the resolution is “to condemn the detention without trial of our colleague [lawyer and politician] Eric Matinenga, Member of Parliament of Zimbabwe and leader of the Harare Bar and the defiance [by the regime] of the order for his release granted on an urgent basis by the High Court”. The High Court ultimately released him but not before a major struggle to achieve it. Again there is complete defiance by the Government of Zimbabwe.

The fourth point is “to call upon the members and secretariat of the Southern African Development Community to ensure that independent legal observers are permitted to be present at all courts in Zimbabwe throughout the trials of members of the legal profession who are being prosecuted for alleged offences”. These are people who are representing clients in the courts of Zimbabwe and who are being prosecuted for criminal offences literally comprising the defence of citizens of Zimbabwe before the courts of Zimbabwe.

The fifth resolution is “to demand that the lawyers of Zimbabwe be permitted without intimidation or penalty to perform their duty to represent and defend their clients in accordance with the rule of law and ensure the entitlement of their clients to basic human rights”. This is not a cry for special privileges for lawyers. When lawyers are being intimidated and prevented from doing the job they are supposed to do, society suffers.

The sixth point is “to demand that the magistrates of Zimbabwe be allowed to adjudicate impartially and without intimidation on the cases which come before them”. We asked Ms Mtetwa whether she would suggest we include the wider judiciary in Zimbabwe and demand that all the judges in Zimbabwe be allowed to adjudicate impartially, but she said there would be no point because people who know in Zimbabwe have given up on the judges. The judges of the higher courts in Zimbabwe are so locked into this rotten regime that there is no point in asking for an independent approach by them. There is some hope in the lower courts and the magistrates and she agreed that we include this point. However, she said it would be a waste of time to ask for the higher courts of the Zimbabwean judiciary to exercise independence. This is a sad testament to what is happening there. The seventh resolution is “to demand that the Attorney-General of Zimbabwe independently and impartially exercise his powers to uphold the rule of law”.

The Minister made the point that the Government will do what it can through the EU, and I am sure it will, but is vital the maximum amount of pressure is brought to bear on those countries that can have an influence. South Africa has been mentioned many times by my colleagues. While we cannot presume to interfere with the African Union, our views must be made known to it. It must cease being a trade union for African presidents and act as a real organisation in defence of the democratic rights of the people of Zimbabwe.

More :: Read the full debate by clicking here

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