The Government intends to unveil a plan today to end the damaging two-week controversy over statutory rape, but a leading constitutional lawyer has already warned that last week's emergency legislation may be both unconstitutional and contrary to the European Convention on Human Rights. Stephen Collins and Carol Coulter report.
Dr Gerry Whyte, co-author of the standard work on the Constitution, maintained that the different treatment of boys and girls in the new Act might not survive a constitutional challenge.
In the Dáil today, the Taoiseach will try and calm the political atmosphere by announcing a series of measures to establish why key members of the Government were unaware the case was coming up and to put in place procedures to ensure that a similar episode does not happen in the future.
According to Government sources, the response was devised at a series of meetings over the weekend involving the Taoiseach, Attorney General Rory Brady, and the Secretary to the Government, Dermot McCarthy.
The main features of the strategy will involve:
- An inquiry into the Attorney General's office to establish whether the procedures put in place after the Brendan Smyth affair in 1994 to keep the Attorney General informed of important cases were adhered to. This inquiry will be carried out by an official from the Department of Finance.
- The appointment of an eminent legal expert to carry out an annual audit of the operation of laws, both national and international, related to child-protection issues.
- The establishment of a new all-party committee to examine all the issues arising from the controversy over the age of consent.
- The implementation of new checks and balances in the Attorney General's office to ensure better communications.
The special Cabinet meting planned for Avondale in Co Wicklow tomorrow to review progress on the Government programme has been cancelled and instead the normal weekly meeting will take place in Government Buildings in Dublin.
Minister for Justice Michael McDowell yesterday met the mother of Mr A's rape victim to hear of her concerns about the current situation.
The Opposition parties are planning a further assault on the Government today, with Fine Gael and Labour both signalling that they will be looking for a full and independent inquiry into the Attorney General's office.
Yesterday, in an interview with The Irish Times, constitutional lawyer Dr Gerry Whyte said that the discrimination between boys and girls in the Criminal Law (Sexual Offences) Act, 2006, passed last Friday, could be too great to survive constitutional challenge, or scrutiny under the European Convention on Human Rights.
The explanation that the intention of the Oireachtas was not to criminalise teenage mothers would not be enough to justify the extent of the discrimination, he said.
The European Court of Human Rights in Strasbourg was particularly sensitive to gender discrimination. "The State would have a heavy onus to justify the discrimination. I can't see that that onus would be discharged."
The Act makes it an offence to engage in a sexual act with any young person under the age of 17, but it also states: "A female child under the age of 17 shall not be guilty of an offence under this Act by reason only of her engaging in an act of sexual intercourse."
During the debate on the legislation, the Minister for Justice said that this section was included to avoid criminalising motherhood.