Fianna Fáil anger with McDowell

Several FF backbenchers want rid of the PDs. Enda Kenny's stature has been enhanced. McDowell's performance is shambolic. Brian Lenihan's career is on the rise. By Emma Browne, Frank Connolly and Vincent Browne

I don't see open rebellion [among backbenchers] but there is a lot of resentment building up against [Michael] McDowell. There are often personal resentments within parties as well as between them but this is different. If he is seen to have dirtied his hands on this one he is gone. Everybody knows that he is another accident just waiting to happen. I have been of the view for the past year that we have got to distance ourselves from the PDs before the election. If we can get the high ground on an issue like this we should take the opportunity to ditch them."

This was the comment of a Fianna Fáil backbench TD in the wake of the Government crisis on the handling of the sex offenders issue. The same TD continued: "We are knocking on the doors in the constituencies and there is no doubt [McDowell] is a liability. We cannot be brought lower than we were last week [the week of the sex offenders crisis] and I think there is a hope now that he will trip himself up on this one." Another Fianna Fáil TD said "Forget about the rights and wrongs. There is a huge anger about McDowell in the parliamentary party and about how he presented himself. Enda Kenny appealed to the feelings of the nation while [McDowell] went on with legalistic arguments without any compassion and failed to address the victims.

If it was a Fianna Fáil minister [McDowell] would be the very one calling for resignation. When it broke first, a couple of TDs tried to call a full meeting of the parliamentary party but the party managers diluted it to a Fianna Fáil policy committee on justice chaired by Barry Andrews [on Wednesday 31 May]. About 60 turned up. Willie O'Dea and Brian Lenihan plotted the course and Brian Cowen was a steady hand not allowing it to get out of control. He did what he had to do to save the Government.

"But the feeling was and still is that McDowell is doing an awful lot of damage to the Government and Fianna Fáil. People are stopping me on the street and saying it. Now we have to do something about victims being put in a witness box." The TD said that two comments at the end of the meeting summed up the feelings of most of those present. Cork TD Noel O'Flynn called for the removal of McDowell from his cabinet position while Meath TD, Johnny Brady, spoke of the lasting damage being done by the minister's arrogance. Dublin TDs Pat Carey and Jim Glennon were also outspoken.

"They said these things because they didn't want the feelings of the party to be ignored. The feeling of the backbenchers is that McDowell should resign. This political storm is brewing and there is still a long time to go before the summer recess so it will not go away. All three PD ministers are liabilities for us." He was referring to Mary Harney, Michael McDowell and Tom Parlon – Tim O'Malley is also a PD minister but not being blamed for the sex-offenders debacle. Another long standing backbencher said that independents Jackie Healy-Rae and Mildred Fox, and at least two more from the Fianna Fáil "gene pool", were waiting in the wings to take the place of the PDs if the party leadership decided enough was enough. "We cannot go to the country because we would be slaughtered in the current climate. But if McDowell goes this Government is gone.

The question is the credibility of any new arrangement with the Independents with just a year to go to a general election. At the end of the day there has to be some moral and political compass and it would probably be the choice of most people at this point to go with the Independents." Enda Kenny's enhanced stature The most persistent observation on Enda Kenny for a year after he took over the leadership of Fine Gael in June 2002 was he lacked stature. He floundered badly in the Dáil and on the airwaves. He seemed to have little command of policy. It as widely predicated he would be eclipsed in the Dáil by Pat Rabbitte, as Alan Dukes and John Bruton were eclipsed by Dick Spring from 1989 to 1992.

But that has changed. In the week of the sex offenders crisis it was Enda Kenny who commanded the Dáil with two assured performances in which he inflicted serious damage on the Government parties, and especially Michael McDowell. As a performer, he is transformed from the shambling, uncertain individual of four years ago. The transformation has come from greater experience at a senior level, personal abilities which were previously concealed and rigorous coaching by perhaps the most impressive public relations adviser since Tom Savage and Terry Prone, their son, Anton Savage of Carr Communications. Kenny's Dáil interventions are now carefully crafted and well delivered, scoring point after point against dejected opponents on the Government benches. Fine Gael's improved poll ratings have also helped.

The Government's mishandling of the crisis In contrast, the three ministers the Government put "up-front" – Brian Cowen, Mary Harney and, particularly, Michael McDowell – struck all the wrong notes. Harney was weak and defensive when she filled in for Bertie Ahern at leaders questions on Wednesday 31 May. She landed a few decisive strikes, but not on the Opposition, rather on her own party colleague, Michael McDowell. She contradicted him on two central points: his department had notice of the constitutional challenge to Section 1 (1) of the 1935 Act from December 2002; and both the Attorney General and the Director of Public Prosecutions (DPP) had "carriage" of the Circuit Court case, not just the DPP as McDowell had stated previously. Cowen, who reportedly was furious with McDowell's handling of the crisis, batted defensively, but he also batted aggressively. And it was the aggressive stance that did the damage to him.

But it was McDowell himself who inflicted the most damage, to the Government generally, to his party and, most of all, to himself. His claim to have been taken by surprise by the Supreme Court decision in finding a section of the 1935 Act unconstitutional is curious, since, on 19 March 1995, he drew attention to the failure to implement the recommendations of the 1990 Law Reform Commission report on child sex abuse – on precisely the issue in contention – in an article in the Sunday Independent. Both as Attorney General (as he was from 1999 to 2002) and as Minister for Justice (since 2002) Michael McDowell had an opportunity to rectify the 1935 Act. In advising on the Sex Offenders Bill 2001 he might have been expected, as Attorney General, to draw attention to the vulnerability of the 1935 Act to which he himself alluded earlier.

However, it seems he did not. Neither did he instigate the reform of this legislation when he became Minister for Justice, Equality and Law Reform. His close friend, Adrian Hardiman, now a member of the Supreme Court, said in his judgement on 23 May in the Circuit Court case that the unconstitutionality of the 1935 Act should come as no surprise and that questions about it should have been appreciated from as far back as 1970.

But it was McDowell's mishandling of his brief once the crisis broke that probably did him the most damage. * He said no one would "walk" from jail as a consequence of the Supreme Court ruling, when it was obvious that those convicted under Section 1 (1) of the 1935 Act had a very strong case to be allowed "walk".

* He said there was no need to rush amending legislation for there was no gaping hole in the law.

* Although he was right in asserting there was no gaping loophole, he was panicked into introducing legislation that he himself has warned may prove unconstitutional.

* Then, most damagingly, his contribution to the debate on the new legislation, in which, as Pat Rabbitte observed, he spent less than a minute talking about the protection of children and 22 minutes talking about his own protection, was a disaster. He entirely failed to perceive the public anger with the deficiencies in legislation protecting children and the prospect of sex offenders being released en masse.

* And, compounding all that, he wildly exaggerated the impact of his own new legislation on teenage girls who may be called in evidence when accused persons claim they made an honest mistake concerning the age of a girl with whom they had sexual intercourse. Precisely the same consequences would have flowed from the implementation of the 1990 Law Reform Commission recommendations, which he advocated in 1995.

His adversarial style, his perceived arrogance and that conceit captured in his frenzied attack on Richard Bruton some months ago – in which he said Richard Bruton did not stand even "knee high" to himself in terms of political contribution (he has never withdrawn this comment or expressed any regret for it) – has alienated not just Fianna Fáil backbenchers but members of his won party. His relations with Mary Harney are poor and several members of the PD parliamentary party express, in private dismay, with his conduct. Were an election to be held in the near future he would probably lose his seat in Dublin South East for the third time in his career (he has never held his seat in successive elections since he first entered the Dáil in 1987).

However, with a year to go before the next general election, public memory of his shambolic handling of this crisis may have waned, but it means he has yet another year to make matters worse for the Government, for his party and for himself. Brian Lenihan There is some consolation for Fianna Fáil in all of this. Brian Lenihan, the junior minister for children, emerged from the crisis with enhanced stature. He and Willie O'Dea, in cabinet, took over the handling of the crisis from McDowell.

Brian Lenihan, reportedly, was balanced, clear-headed (while all about him were losing their's) and his public statements were calm, reassuring and measured. Were the coalition to break up, and were Fianna Fáil to go it alone from now to the 2007 general election, Brian Lenihan would certainly be Minister for Justice, Equality and Law Reform. Many in Fianna Fáil are of the view that a change should be made anyway. Finally, some commentators have been critical of Bertie Ahern's decision to remain at a UN conference in New York while the sex offenders crisis waged at home. The reality is however that the public memory will store the images of those involved – McDowell's barking n the Dáil on Friday 2 June, Brian Cowen's aggressiveness, Mary Harney's defensiveness. There are no images of Bertie Ahern associated with this crisis in the public memory. 

Ignored sex abuse recommendations

Most of the recommendations relating to law on child sexual abuse made by the Law Reform Commission in their 1990 report on child sexual abuse have now been implemented in legislation. These are the following major recommendations from the commission's 1990 Consultation Paper on Child Sexual Abuse that were not implemented:

• There should be a legal obligation on people in certain position – doctors, teachers, social workers – to report child abuse. Failure to report such abuse should be an offence.

• There should be a statutory duty on health boards to take minimal steps in response to a report of alleged child sexual abuse.

• Health boards should have a legal duty to hold a case conference in cases of child sexual abuse where the reports have not been rejected as unfounded.

• A provision allowing for a barring order or a removal of the suspected abuser, rather than the child at risk, from the home.

• The creation of an offence of sexual exploitation. They suggested the offence would encompass the doing, procuring or inciting of an act, other than sexual intercourse or anal penetration, with a person below a specified age for the purpose of sexual gratification. (Although a specific offence relating to sexual exploitation has not been enacted, the Child Trafficking and Pornography Act 1998 dealt with some of the issues relating to child exploitation.)

• There should be greater penalties for sexual offences relating to child sexual abuse where the perpetrator is a person in authority – defined as parent, step-parent, grandparent, aunt or uncle, guardian or person responsible for education, supervision or welfare of the child.

• Child examiners should cross-examine child witnesses in court, in place of barristers.

• An exception to the hearsay rule allowing a child's testimony on the grounds of reliability should be introduced.

• A provision allowing expert evidence of the competence of a child witness and concerning children's typical behaviour and emotional reaction to sexual abuse. In 1990 the Law Reform Commission also issued a report on sexual offences against the mentally handicapped.

Most of these were incorporated in the Criminal Law Sexual Offences Act 1993. There was one which was not included:

• If both parties were mentally handicapped then no sexual offence was committed under the new legislation.

There has been widespread calls from children's organisations, including the Children's Rights Alliance and the Ombudsman for Children, that legislation for child sexual abuse reporting be brought in. In 1999 the Government brought in guidelines on reporting child sexual abuse called Children First. Because of the lack of a statutory basis for the reporting of child sexual abuse there is no uniform approach.

Jillian van Turnhout, chief executive of the Children's Rights Alliance says: "Although the guidelines have been in place for six years and are national policy, they have yet to be rolled out properly within the Health Services Executive. Some areas are currently not operating under the Children First Guidelines due to a lack of resources and a lack of capacity. The manner of implementation of the guidelines has been sporadic and somewhat ad hoc, differing from region to region." A third report by the Law Reform Commission from 1987 on rape legislation was incorporated into the Criminal Law Rape Amendment Act 1991 and the Criminal Justice Act 1993.