I move amendment No. 17:

In page 19, between lines 9 and 10, to insert the following:

Amendment of section 19A of Criminal Evidence Act 1992

16. The Criminal Evidence Act 1992 is amended by the substitution of the following section for section 19A:

“19A. (1) In this section—

‘competent person’ means a person who has undertaken training or study, or has experience, relevant to the process of counselling; ‘counselling’ means listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration); ‘counselling record’ means any record, or part of a record, made by any means by a competent person in connection with the provision of counselling to a person in respect of whom a sexual offence is alleged to have been committed (‘the complainant’); ‘court’ means the Circuit Criminal Court or the Central Criminal Court; ‘sexual offence’ means an offence referred to in the Schedule to the Sex Offenders Act 2001.

(2) For the purposes of any criminal proceedings in respect of a sexual offence, counselling records shall be deemed to be hearsay evidence, and any statement contained in such records shall be treated as an out of court statement tendered for the truth of its contents, regardless of—

(a) the form of the record,

(b) whether the statement is verbatim or summarised, or

(c) whether the statement is expressed as fact, opinion, or impression.

(3) Notwithstanding any other provision of law, no record that consists of, or includes, counselling records or therapeutic records relating to a complainant shall, in any circumstances, be—

(a) sought,

(b) inspected,

(c) produced to a court,

(d) disclosed to the accused, the prosecutor, or any other party, or

(e) admitted in evidence, in any proceedings for a sexual offence, save that nothing in this subsection prevents a complainant from voluntarily disclosing their own counselling or therapeutic records to any person of their choosing.

(4) For the purposes of subsection (3), ‘counselling records or therapeutic records’ includes any record created in the course of, or for the purpose of, counselling, psychotherapy, psychological support, mental health treatment, or any related therapeutic service, whether provided by a professional, volunteer, or support organisation.

(5) No person, including the accused, the prosecutor, or any other party, shall make an application to the court seeking the production, inspection, disclosure, or admission of any record to which subsection (3) applies.

(6) Any purported application made in contravention of subsection (5) shall be void and shall not be accepted for filing or considered by the court.

(7) No person shall directly or indirectly contact a record holder, a complainant, or any other person for the purpose of seeking, requesting, or encouraging the disclosure of a record to which subsection (3) applies.

(8) A record holder shall not comply with any request, demand, or purported court order for the production or disclosure of a record to which subsection (3) applies.

(9) A court shall not compel, direct, or invite the production or disclosure of a record to which subsection (3) applies.

(10) Nothing in this section prevents a complainant from voluntarily disclosing their own counselling or therapeutic records to any person of their choosing, provided that such disclosure is not compelled, requested, or encouraged by any party to the proceedings.

(11) Rules of court may be made for the purpose of giving full effect to this section.”.

Amendment No. 18 is in the names of Senators Higgins, Ruane, Stephenson and Black, was already discussed with amendment No. 16 and I understand Senator Harmon is moving the amendment.

I move amendment No. 18:

In page 19, between lines 9 and 10, to insert the following:

“ Amendment of section 19A of Criminal Evidence Act 1992

16. The Criminal Evidence Act 1992 is amended by the deletion of section 19A and the substitution of the following:

“19A. (1) In this section—

‘competent person’ means a person who has undertaken training or study or has experience relevant to the process of counselling;

‘complainant’ means a person in respect of whom an offence is alleged to have been committed;

‘counselling’ means listening to and giving verbal or other support or encouragement to a person, or advising or providing therapy or other treatment to a person (whether or not for remuneration);

‘counselling record’ means any record, or part of a record, made by any means, by a competent person in connection with the provision of counselling to a complainant.

(2) A counselling record shall not be disclosed in any criminal proceedings unless the complainant has consented to the disclosure.

(3) A complainant shall not be required, in or in connection with any criminal proceedings, to produce a counselling record unless the complainant has consented to the production of a counselling record.”.”.

I have moved the amendment on behalf of the Civil Engagement Group and propose to withdraw the amendment.

I move amendment No. 19:

In page 23, to delete lines 18 to 21 and substitute the following:

“(b) there would be a real risk of an unfair trial in the absence of such disclosure.”,”.

I move amendment No. 20:

In page 23, between lines 21 and 22, to insert the following:

“(g) by the insertion of the following after subsection (11):

“(11A) Where an applicable record containing analysis, opinion or interpretation by the record-maker is adduced in evidence in proceedings before a jury, the court shall give a warning to the jury outlining the nature and limitations of such evidence, including that it may constitute a third-party interpretation and not a direct account of fact.”,”.

Amendments Nos. 21 to 23, inclusive, are related, and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 21:

In page 23, after line 34, to insert the following:

“ Review of operation of section 19A of Criminal Evidence Act 1992

17. (1) The Minister shall, not later than 2 years after the coming into operation of section 16 , cause a review to be carried out of the operation of section 19A of the Criminal Evidence Act 1992.

(2) A review under subsection (1) shall include an examination of—

(a) the effectiveness of the provisions in protecting the privacy rights of complainants,

(b) the extent to which applicable records are the subject of disclosure applications,

(c) the impact of the provisions on the fairness of criminal proceedings, and

(d) the operation in practice of the procedures introduced by section 19A of the Criminal Evidence Act 1992, including timelines and procedural safeguards.

(3) The Minister shall, as soon as practicable after the completion of a review under this section, prepare and lay before each House of the Oireachtas a report setting out—

(a) the findings of the review, and

(b) any recommendations for legislative or administrative changes arising from those findings.”.

I move amendment No. 22:

In page 23, after line 34, to insert the following:

“Annual reporting and publication of anonymised data

17. (1) The Minister shall, in respect of each calendar year, cause to be compiled and published a report containing anonymised statistical data relating to the operation of section 19A of the Criminal Evidence Act 1992.

(2) A report under subsection (1) shall include anonymised information in relation to—

(a) the number of disclosure applications made,

(b) the number of such applications granted, refused, or withdrawn,

(c) the categories of applicable records sought,

(d) the stage in proceedings at which applications are made, and

(e) any other matters that the Minister considers appropriate for the purpose of promoting transparency and public understanding of the operation of section 19A of the Criminal Evidence Act 1992.

(3) In preparing a report under this section, the Minister shall ensure that no information is included that could reasonably lead to the identification of any complainant or other person to whom an applicable record relates.

(4) A report under this section shall be laid before each House of the Oireachtas as soon as practicable after its completion.”.

Senator Sarah O'Reilly is not present to move her amendment No. 23.

Amendments Nos. 24 to 27, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

These amendments concern the International Criminal Court Act 2006. They are minor and very technical amendments. Amendments Nos. 24 to 26, inclusive, ensure the definition of the crime of aggression for the purposes of co-operating with the International Criminal Court, ICC, shall not include any additional acts contained in a subsequent amendment to Article 8 of the ICC's Rome Statute in the absence of new primary legislation or a Government order made pursuant to the proposed section 64A of the 2006 Act. Similar limitations are already provided for in this Bill with respect to genocide, crimes against humanity and war crimes and so it is considered that it would be anomalous not to extend such a limitation to the crime of aggression. Additionally, the wording of what is now subsection (1B) has been altered to ensure it aligns better with Articles 25, 26 and 28 of the Rome Statute.

Amendment No. 27 clarifies that the exception contained in subsection (2A) of section 64A shall only apply to domestic criminal investigations of International Criminal Court crimes and not to other proceedings such as those connected to co-operation requests with the ICC. While section 64A grants the Government the power to make orders prescribing certain acts that are the subject of an amendment to the Rome Statute as a crime within the jurisdiction of the ICC, this is only for the purpose of co-operation with the court and cannot be used to alter any domestic criminal offence in Irish law. This small clarification is aimed at more clearly reflecting this.

Amendment agreed to.

Amendments Nos. 28 to 31, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 28:

In page 35, line 31, to delete “in lieu of payment” and substitute “in lieu of, or in exchange for a reduction in, payment”.

I intend to move all these amendments and propose to discuss them together. Amendments Nos. 28 to 31, inclusive, are very straightforward amendments in relation to the element of this Bill that would provide the statutory provision on the issue of sex for rent, which needs to be outlawed. From the outset, we really welcome this provision and the first Bill I brought through as a Senator was on this Bill. I am really pleased the Minister has taken it on. He is the first Minister who has taken this issue on because a number of Ministers have made promises to deal with the issue and it was not dealt with. This is a huge step forward and should be broadly welcomed.

Amendments Nos. 28, 30 and 31 are all related and what they seek to do is ensure that when we are talking about the issue of sex for rent, as it is so called, what is inserted in the Bill also includes reductions in payment. We are talking about sex in lieu of or in exchange for a reduction in payment, so it takes into account any proposals related to an exchange for sex for full or partial payment of rent. Those three amendments relate to that. This is a very sensible proposal we hope could be accepted by the Minister.

Amendment No. 29 seeks to close what we see as a potential loophole in the legislation. We feel that potentially, the Bill could risk leaving out sitting tenants and licensees who have existing tenancies and could just apply to future tenancies. It is important this legislation covers existing tenancies of all sorts as well as any future tenancies. As there could be people who are already in these situations and need to have this protection under the law, again this is a very sensible amendment. I have tabled those four amendments together, which we believe would strengthen this legislation.

Again, I commend the Minister on addressing this issue. Having it set out in legislation will create a deterrent and awareness that this is an offence and needs to be stamped out because it is something that has significant prevalence in society. We know from reports and surveys that have been done by the Irish Council for International Students and the National Women's Council that this is a prevalent issue. There has been extensive coverage on this issue from journalist Ann Murphy in the Irish Examiner in Cork. We welcome the provision but hope the Minister can consider these amendments.

I thank Senator Harmon for the amendments and at the outset I acknowledge her role in ensuring this provision is within this miscellaneous provisions Bill. The reason for that is because last year, Senator Harmon introduced legislation in this House seeking to outlaw sex for rent. At the time I agreed with it and said I would try to bring it forward, which is what I am doing in section 45. The real advantage of a miscellaneous provisions Bill is that you can get provisions enacted and onto the Statute Book very promptly. Had I decided just to agree with Senator Harmon and say we would go down the route of introducing legislation to outlaw sex for rent, I would say we would not have it done by now. We would have to go through a long, detailed process and that is natural because there is a huge amount of work in the Department of justice. Officials work extremely hard and diligently but there obviously is prioritisation when it comes to legislation.

That is why I wanted to prioritise this and the best way to prioritise it was by including it within the miscellaneous provisions Bill. I thank Senator Harmon for her role in catalysing the introduction of this legislation, and hopefully its enactment. The Senator is correct in identifying, as she did last year, that the reason we need this provision is because of this pretty hideous and reprehensible activity that is ongoing. I know certainly that when it comes to the beginning of the college year in September, we generally hear some further accounts in respect to this. As well as commending Senator Harmon, I should commend the journalists who have identified this and who brought it to the attention of policymakers and legislators such as ourselves. It is exploitative behaviour. We need to stamp it out and we need to ensure it is not recognised as being in any way acceptable behaviour. Criminalisation of this behaviour is also a programme for Government commitment. It is also in line with the zero-tolerance strategy and the line the Government has in respect of our approach to domestic, sexual and gender-based violence. Notwithstanding that it is something we all recognise needs to be made a criminal offence, it is complicated from a legislative perspective. This is why we had extensive engagement with the Office of the Attorney General in respect of the provisions. It required also getting the assistance of senior counsel with experience of prosecuting sexual offences. Officials in the Department of housing also contributed to the process.

The legislative provisions we are including are novel insofar as they represent a potentially significant inroad into the private sphere of interpersonal relations. Great care has been taken to ensure that they are clear, precise and limited in scope. This is necessary in order to ensure that the provisions are workable, constitutionally sound and prosecutable and that they will not create any unintended consequences. I am confident that moving to criminalise this predatory behaviour sends a strong message that such behaviour is not acceptable and that we as a society will not tolerate it. I want to assure Senators that I will keep this area under review to ensure that the legislation is working as it should, including expanding it in due course if deemed necessary.

In terms of the amendments put forward by Senator Harmon, where there is a reference on three occasions to "in lieu of payment" the Senator wants to include “in lieu of, or in exchange for a reduction in, payment”. The Office of the Attorney General has asked me to be cautious about this. The reason for that is when a person is asking somebody for sex in lieu of rent it is clear what is happening. The inclusion of "In lieu of a reduction in rent" could lead to circumstances where there may be a relationship ongoing between a landlord and a tenant. Are we going to then start saying that if there is a small reduction in rent because of the relationship that had consensually developed between them, in some respects could that retrospectively be identified as having been a criminal offence? It is an issue of concern.

It is a novel piece of legislation and I would just say to Senator Harmon that I am not going to accept the amendments because of their breadth. I know they may appear logical in terms of what the Senator is trying to outlaw but given the interaction or interference it will have in certain relationships and what could be regarded as a criminal act, namely, reducing slightly rent by a certain amount because of a relationship, I am not going to accept the amendments. I have gone through the process of having the new section 45A vigorously examined by the Office of the Attorney General and by officials in my own Department who were very satisfied that it is constitutionally sound and will stand up to any scrutiny. I do not want to start interfering with it at this stage. In respect of other matters, we will keep it under review. Again, I want to commend Senator Harmon on her role in bringing forward this legislative provision.

I thank the Minister for the reply on the amendments. It is important that we do keep it under review. It is new legislation and it will be important to see how it plays out in respect of reports on the issue and people who come forward with any potential cases. It will be important to see how robust the legislation is. I am happy to withdraw the amendments at this stage.

I appreciate that the Minister has been collaborative on this issue. When I introduced my own legislation - I think in April of last year - the intention was to be proactive and to come up with a solution. I appreciate that the Minister has taken that on board and within 18 months has come up with a proposal in that regard. It will be impactful, hopefully coming up to the new college year, to have this in place and to emphasise that there is this statutory provision and it should act as a deterrent. There needs to be public awareness around the issue and that this is going to be a new law. Interestingly, this morning at the Oireachtas committee on further and higher education, we were discussing matters in relation to sexual harassment and violence and particularly in relation to students. We had a number of different groups in and they talked about the issue of sex for rent and how prevalent it is, particularly for international students, migrants and those who are vulnerable. Again, it is really important that we have this provision in place. I do welcome it. Obviously there are further Stages to come on the Bill itself but it is a step forward in this area. It is important that the commitment is upheld to keep it under review. It is new legislation and we need to see how it plays out. Ultimately, we need to ensure that it is protecting those who are most vulnerable, particularly women, migrants, those whose first language might not be English and those who are living in poverty. As we need to ensure it is working for them, a review of it will be needed. I thank the Minister for his collaboration, openness and proactivity in relation this area.

I move amendment No. 29:

In page 35, between lines 32 and 33, to insert the following:

“(2) A person who, being a landlord or licensor of relevant accommodation that is let or licensed in exchange for payment, solicits or importunes another person to engage in sexual activity with any person in lieu of, or in exchange for a reduction in, payment in respect of the tenancy or licence shall be guilty of an offence.”.

I move amendment No. 30:

In page 35, line 38, to delete “in lieu of payment” and substitute “in lieu of, or in exchange for a reduction in, payment”.

I move amendment No. 31:

In page 36, line 6, to delete “in lieu of payment” and substitute “in lieu of, or in exchange for a reduction in, payment”.

Amendment No. 32 is in the names of Senators Higgins, Ruane, Stephenson and Black. Senator Harmon is moving it on their behalf.

I move amendment No. 32:

In page 37, between lines 18 and 19, to insert the following:

“(d) the area does not contain any street furniture incorporating advertisements, apart from the name of the licensed premises, that are visible to members of the public, unless with the prior consent of the relevant local authority;”.

Amendment No. 32 relates to the Bill's provisions regarding the licensing of outdoor seating areas in licensed premises. Through the amendment, the Civil Engagement Group seeks to prevent the erection of street furniture containing advertisements in outdoor seating areas unless prior consent has been provided by the relevant local planning authority. The Civil Engagement Group has stated that the Minister will acknowledge and understand that if we walk around the city we will see outdoor areas of many licensed premises that contain street furniture such as umbrellas, canopies, awnings, barriers or guardrails that contain advertisements for brands and companies other than for the licensed premises itself. In the majority of circumstances these advertisements are for alcohol brands that pay for street furniture in exchange for their brand names being included on them. There is a public health rationale for this amendment as the subtle and unregulated erection of these advertisements is in conflict with the advertising codes for alcoholic beverages as set out in the Public Health (Alcohol) Act 2018, with particular respect to the watersheds that prevent advertisements for alcoholic products being broadcast at different times during the day and the displaying of advertisements for alcoholic products near public transport stops, crèches, schools and playgrounds.

There is an additional rationale for the amendment in relation to the visual impact that branded street furniture has in the public realm. The public realm in Ireland tends to be quite cluttered when compared with many of our counterparts in Europe. One only needs to walk around Dublin city centre to see this.

While there are laudable aesthetic considerations in reducing unnecessary visual clutter, the primary concern relates to the legibility of public spaces and, therefore, their accessibility for people who have difficulty navigating the built environment. With this in mind, the CEG proposes that we should attempt to reduce unnecessary clutter in the built environment wherever possible.

While recognising the financial considerations in terms of licensed premises accepting complementary street furniture from alcohol beverage companies, the CEG believes the primary consideration must be about how this corporate branded furniture interfaces with the community through the public realm. This amendment would ensure that the street furniture contained in licensed outdoor areas could not contain corporate branding other for the licensed premises itself, limiting the use of our public realm as an unregulated advertising billboard. I moved this amendment on behalf of the Civil Engagement Group but I will withdraw it at this stage.

I thank the Senators for their proposed amendment. The amendment concerns Part 14 of the Bill which relates to outdoor seating areas for licensed premises. Colleagues will be aware that since 2020, Ministers for justice have come to the Houses of the Oireachtas every six months, looking for the extension of these measures that were introduced during Covid-19. It is sensible that we keep them on a permanent basis as it does improve the quality of life and enjoyment that people can have to be able to sit outside on the infrequent days that we get good weather. It should be permanently on the Statute Book. If it is enacted, it will mean that we will not have those resolutions coming back to be voted on in the Seanad and the Dáil every six months.

The amendments put forward by Senators Higgins, Ruane and Stephenson are unnecessary when we look at the current legislative framework. A street furniture licence is issued at the discretion of the local authority under section 254 of the Planning and Development Act 2000. It will be issued under the Planning and Development Act 2024 when the relevant provisions of that Act are commenced. Under section 46 of this Bill, a street furniture licence is defined as "a licence granted to a licensee of a licensed premises under section 254 of the Act of 2000 or section 13 of the Act of 2024 in respect of tables and chairs, prescribed under section 254(1)(g) of the Act of 2000 or section 13(2)(h) of the Act of 2024, situated outside the premises".

Licensees who are granted a street furniture licence under the provisions of this Bill are bound by the provisions of section 254 of the 2000 Act. Compliance with the terms and conditions of a street furniture licence, including those in respect of advertising, is mandatory. A breach of those conditions can result in the revocation of the street furniture licence which could have serious repercussions for a licensee. Non-compliance with a street furniture licence can ground an objection to an application for a renewal of that licensee's intoxicating liquor licence. Accordingly, the amendment is not necessary as we already deal with that in our legislation.

On section 51, the Labour Party wholeheartedly welcomes this legislation but there are some outstanding issues which we wish to hear the Minister respond to. These issues were previously raised by my colleague, Deputy Nash, in the Dáil. A key issue is that this legislation needs to take account of members of the Defence Forces who received convictions under military law. These people cannot be excluded from this disregard proposal.

Another issue is that we need to broaden the scope of who can submit an application on behalf of a deceased person. We need to be conscious that during the last century, gay people were often shunned, excluded or otherwise disconnected from close familial connections. That needs to be taken into account by allowing a wider network of people to submit an application to this scheme on behalf of a deceased person.

This Bill should also include an acknowledgement that where an application is not made, a person who had a relevant conviction should be generally regarded as exonerated. This is really important in light of the discriminatory nature of their conviction. I wish to hear the Minister's assurances on these matters, and, failing that, I will look at bringing forward further amendments on Report Stage.

I again acknowledge Karl Hayden, who is in the Gallery, and who has been a long-time campaigner in relation to this issue. Brian Sheehan and Kieran Rose, who visited this House yesterday, have been closely following this debate and advocating for these changes for many years, along with my colleagues in Labour LGBT, a very active section within our party. We have come to this point through a lot of campaigning and courage over the years from many different campaigners and many people who have spoken out, as well as the families and friends of those who had a conviction. It is important that we get it right, and it is welcome that progress is being made. I commend my colleague, Deputy Nash, on spearheading this over the years. He has done enormous work on this issue.

I also want to speak on Part 15 of the Bill. This is an important part of the legislation that we are putting through the House today on Committee Stage. This is the part that deals with the disregard of certain historical convictions and other determinations. I also welcome Karl Hayden to the Gallery and recognise the work done by Kieran Rose, Brian Sheehan and others over the years in respect of this scheme.

Similarly, many Members of the Oireachtas have been pushing this for many years. Again, I decided that I would expedite it through that great mechanism known as a "miscellaneous provisions Bill". It has been very effective in terms of getting legislation enacted that has been proposed and discussed for many years. My advice to anyone who becomes Ministers for justice in the future is to use the miscellaneous provisions Bill to get things done promptly because before they know it, they will not be Minister for justice, and their opportunity will be gone.

It is extremely important that we have a disregard scheme to recognise the unfairness that was done to men since the foundation of the State in 1922 because of an inherent aspect of their personality which was their sexuality. It is important that we do this by way of a disregard scheme, which, in a way, is better than a pardon as it disregards them and recognises that they should never have been imposed in the first place.

The scheme, as the Members will see, which is set out in Part 15, is complicated scheme but it allows a relatively simple procedure to operate for applications that can be made for a disregard. When this was first being considered by me in the Dáil, I thought that maybe the way to deal with it was do something like they did in the UK in respect of the miscarriage of justice that operated for those who were involved in the post office prosecutions many years ago, and that we would just introduce legislation to say that anyone convicted of the offences, which will be scheduled, should have those offences disregarded.

It was then sensibly and importantly pointed out to me by officials that we have to be careful because there may been people who were convicted of such offences where there was non-consensual sexual activity. Of course, the people advocating for this would not like to see that happen because what really want to protect and disregard is those men who were involved in consensual sexual activity. For that reason, we have put in place a scheme that requires an application being made. There is a review process in it. Persons can also make applications on behalf of persons who are deceased. Once we get this enacted, and measures are starting already, we want to see this operational as quickly as possible. I am having discussions with others in respect of how we can get that done.

Senator Harmon mentioned those in the military. This issue was raised with me in the Dáil and I responded to it. The first thing to respond to is the question of whether the scheme covers convictions handed down by military courts, and the answer is "Yes." The definition of "relevant conviction" or "caution" covers convictions recorded by a court of criminal or military jurisdiction. A person who was convicted by court martial of buggery, or one of the other listed offences listed in the scheme, may apply for a disregard on the same basis as a person convicted in a civilian court.

However, there is another more pertinent question in respect of the military, which is why the scheme does not include the military misconduct offences recommended by the working group. Senators may be aware that the working group, which prepared a very detailed report in respect of this issue, recommended that the scheme should include certain military misconduct offences, such as disgraceful or scandalous conduct or conduct prejudicial to good order and discipline under the Defence Act 1954 and its predecessor, the Defence Forces (Temporary Provisions) Act 1923.

During the course of the discussion and consultation on the draft heads, significant legal concerns were raised about including any case in which a person was court-martialed for military misconduct. On careful consideration, I concluded that these offences could not appropriately be included, and there are two reasons for this. First, it would be legally questionable but also impracticable, especially at this remove, to attempt to determine whether a particular court martial was brought purely because of the homosexual nature of an act, rather than because it involved a disciplinary infraction, such as abuse of rank. This would equally have been the case if the act had been heterosexual in nature. Second, the relevant misconduct offences under the 1954 Act remain in force and, according to the Department of Defence, continue to be used today. Their inclusion would open the possibility for misconduct convictions right up to the present day and into the future to be relitigated under a scheme intended to address a historical injustice. Equally, to impose a cut-off date, such as the 1993 decriminalisation date, would almost certainly be challenged as arbitrary and unfair. For those reasons, I consider that the inclusion of these offences would not be legally or operationally viable. However, military convictions for the repealed offences of buggery, attempted buggery, gross indecency and importuning are within the scope of the scheme.

I am also conscious that there is an amendment due in respect of section 53, which was also an issue raised by Senator Harmon, but I will respond to that when it arises.

I move amendment No. 33:

In page 45, line 2, after “relative” to insert “, partner, or other demonstrably trusted person to the relevant person”

I am moving this amendment on behalf of the Civil Engagement Group, with its permission. I will speak to the amendment initially. It seeks, on page 45, line 2 of the Bill, after "relative", to insert "partner, or other demonstrably trusted person to the relevant person". The amendment proposes to extend the provision that allows for relatives of a deceased person to apply for the disregard of convictions or determinations against them to the person's surviving partner or another demonstrably trusted person. As drafted, the Bill prevents persons other than close relatives of the deceased person from applying for a disregard of historic convictions or determinations. The disregard scheme is designed to allow individuals or their representatives to apply to have historic convictions for consensual same-sex sexual activity to be disregarded. The Bill, as drafted, refers only to a relative in setting out who may act on behalf of a relevant person. It fails to take account of the lived realities of many LGBTQIA+ people, particularly those who are elderly or who have sadly already deceased. I outlined my own concerns in this regard under the previous relevant section. Amendment No. 33 seeks to address this by broadening the definition to include a "partner, or other demonstrably trusted person to the relevant person". The amendment seeks to ensure that the process by which a historic conviction can be disregarded or expunged is accessible, inclusive and reflective of the lived realities of LGBTQIA+ people. It acknowledges that many historically relied-on partners are chosen family rather than relatives, with whom they may have had strained relationships or from whom they may have been estranged. Having moved this amendment on behalf of the Civil Engagement Group, I will withdraw it after the Minister has responded.

As amendment No. 33 is the only amendment to this important part of this legislation, I might respond to it. As Senator Harmon has said, the amendment concerns section 53(1)(d), which provides that where there is no immediate family member willing or able to apply for a disregard in respect of a relevant person who is deceased, another relative may make such an application provided there is no objection from an immediate family member. The proposed amendment suggests that we provide that in addition to a relative, such an application may also be made by a "partner, or other demonstrably trusted person to the relevant person". It is important to look at the very broad definition of "relative" contained within section 51 of the legislation. It states:

“relative” means, in relation to a relevant person who is deceased, a brother, step-brother, sister, step-sister, grandchild, uncle, aunt, niece, nephew, grandniece or grandnephew of the relevant person.

The amendment proposes that this would now include a "partner, or other demonstrably trusted person to the relevant person". While I accept the good intentions of the proposed amendment, there are several reasons I cannot accept it. First, partners are already captured in the Bill. In fact, they are included in the definition of "immediate family member" in section 51, which is something I should have referred to a few moments ago. The definition in question refers to a "civil partner, cohabitant, partner or child of the relevant person". This means that such people are included in the first order category of persons who may make an application on behalf of a deceased person, rather than in the relatives category, which the Senator's amendment would effectively align them with and consign them to. A relative, as defined in the Bill, may only make an application where there is no objection from an immediate family member.

A second difficulty with the amendment is that the term "demonstrably trusted person to the relevant person" is a very vague term. It could present significant difficulties for statutory interpretation or in practice when determining what is meant by "demonstrably trusted". How do we demonstrate the person was "demonstrably trusted" by the deceased person? How is it to be assessed and applied in a consistent way?

Third, and fundamentally, when it comes to deceased persons, there may in some cases be real privacy concerns and other sensitivities around reopening what may be a painful chapter of family history for the surviving families or partner of the deceased. It may be deeply personal or divisive within the family. It is not necessarily a matter in which someone external, such as a friend of the deceased, should get involved, regardless of how close they may have been to the deceased. Equally, in my view, what makes a disregard for a deceased person truly meaningful is where it is sought by someone with an indisputable and tangible link to the deceased person, whether by blood, marriage or a committed intimate relationship, which of course includes partner or civil partner.

For these reasons, the question of seeking a disregard for a deceased person should ultimately be a matter for those persons specified in the legislation. It is also worth bearing in mind that many comparable schemes in other jurisdictions do not make any provision for disregard on behalf of deceased persons or are very limited in who may apply in such cases. The Bill, as drafted, strikes an appropriate balance by enabling applications from a wide range of family members, partners and relatives. I know the Senator has expressed her intention to withdraw the amendment, but I just wanted to make those points on it.

Pursuant to Standing Order 165, it is reported to the Seanad that the Title has been amended.

When is it proposed to take the next Stage?

Is that agreed? Agreed.

When is it proposed to sit again?

Next Tuesday at 12.30 p.m.

Is that agreed? Agreed.