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Dáil Éireann debate -
Wednesday, 12 Apr 2000

Vol. 518 No. 1

Commission to Inquire into Child Abuse Bill, 2000: Report Stage (Resumed).

I move amendment No. 4:

In page 3, line 27, after "child," to insert "or failure to redress such an injury,".

Amendment put and declared lost.

Amendment No. 6 is related to amendment No. 5 and both may be discussed together.

I move amendment No. 5:

In page 3, between lines 27 and 28, to insert the following:

"(b)the wilful, reckless or negligent infliction on a child of a wrong of a sexual nature or failure to prevent such a wrong, or failure to redress such a wrong,".

There is a difference between these amendments. Amendment No. 5 is closely related to amendment No. 1, though I sought to have the following wording inserted between lines 25 and 26:

"(a)the wilful, reckless or negligent infliction on a child of a fear of injury or failure to prevent such a fear, or failure to redress such a fear,”.

I do not intend to waste time by rehearsing all the arguments on that again, but this amendment would insert a similar wording in a different paragraph. "An act of sexual abuse" is defined in the Statute of Limitations (Amendment) Act, 2000, and the insertion of a new definition in this legislation is a case of reinventing the wheel.

These amendments address the definition of "sexual abuse". Section 1(1)(b) is a more general and clearly understood statement of what constitutes “sexual abuse” and amendment No. 6 could obscure the issue. Nothing would be added to the legislation by importing the definition in the Statute of Limitations (Amendment) Act, 2000. I am satisfied the definition of “sexual abuse” is deliberately very wide and encompasses what is proposed in the amendments.

Amendment, by leave, withdrawn.
Amendment No. 6 not moved.

Amendment No. 8 is related to amendment No. 7 and both may be taken together by agreement.

I move amendment No. 7:

In page 4, line 20, after "includes" to insert "a temporary residential setting,".

I drafted this amendment to take account of a limitation in the legislation. Section 1(1) states:

"‘institution' includes a school, an industrial school, a reformatory school, an orphanage, a hospital, a children's home and any other place where children are cared for other than as members of their families;"

A residence is established in the sense of where one stays or lives, but a person could be taken out for the day or taken to work. A case was brought to my attention, for example, where a lay member of an adoption society took a child out to work. I am just anxious to secure the extension of this definition to include all places even if they are just temporary residential settings. We discussed this to some extent on Committee Stage in terms of taking children away for weekends to camps or on temporary holidays. The aim of the amendment is to address that scenario. The Minister suggested that he would devise a wording of his own which would give me some security in terms of the proposal in my amendment. I am anxious to hear from him in that regard.

I support Deputy Higgins. The Bill, as drafted, will establish a commission to inquire into the abuse of children in institutions and it is important that it should cover other locations at which they were placed while under the care of the institution, whether temporary residence or trips. The Deputy has raised an important issue, which requires clarification. I also recall the Minister signalling on Committee Stage that he would give sympathetic consideration to the amendment.

I agree that the issues raised in the amendment must be covered by the commission. This was always my intention and the current wording was prepared with this in my mind. I undertook on Committee Stage to re-examine this issue and I am satisfied the wording covers all situations and, in the circumstances, the proposed amendments would not add to the definition.

The Bill provides for inquiring into abuse by any person committed in an institution – this includes people who work in the institution, visitors or others – and abuse of a person outside the institution by a person involved in the operation of the institution or associated in any way with the institution. The Deputy will note that amendment No. 11 will further address the issue he has raised by including anyone associated with an institution.

I support amendment No. 11 as it covers the person or the agent. I am anxious, however, that there is an assurance regarding the setting, which is very important. Amendments Nos. 9 to 11 deal with a person or agent whereas these amendments deal with the setting. My concern was that the construction of the term "residence" could be interpreted in terms of primary residence, usual residence or whatever. I want to be absolutely sure that even for short periods of time the residence where the child found himself or herself was included. If the Minister tells me that his advice is that the Bill is unequivocal in this regard, I am happy to withdraw the amendment.

Yes, I can give that assurance to the Deputy for the types of situations that have been mentioned by both Deputies.

Amendment, by leave, withdrawn.
Amendment No. 8 not moved.

We now come to amendment No. 9 in the name of Deputy Higgins. Amendments Nos. 10, 11 and 12 are related so it is proposed that we discuss Nos. 9 to 12, inclusive, by agreement.

I move amendment No. 9:

In page 4, line 42, after "institution" to insert "or a person associated or connected with the institution who had any measure of control or authority over a child resident or formerly resident in the institution".

This amendment is to address a situation involving a rather sad case which was brought to my attention in the course of preparation for this legislation. It was one where a very young child was taken out to work by a lay member of an adoption society on the assumption that the nuns would be too close to the child and, therefore, the lay person was better able to handle the situation. It is vitally important that we have a clear assurance on this aspect. The crucial words in the amendment are "measure of control or authority". The case I mentioned is one in which the person could claim a kind of authority which I would suggest, in some circumstances made known to me, was abused. In that sense our difficulty with the original Bill, even on Committee Stage, related to one hand being involved in the management, operation, employment procedures or whatever and that it did not deal with the volunteered sector as it interfaced with the institution.

Deputy Bruton's amendment No. 10 is similar to my amendment. The Minister has suggested, and we will hear from him when he moves his own amendment, that my concerns are met by the words "associated with".

My separate amendment No. 12 includes the words "or a person who enjoyed access to the institution". This was to deal with other circumstances such as those which may have been drawn to my attention. For example, a person "in association with", as the Minister would have it, might be constructed formally as this person who was involved in an adoption society or whatever but a person who had access could be a person who was in another voluntary capacity but one which was not recognised formally. The purpose of these amendments was to cover all cases of access to the child. Amendment No. 9 covers the formal connections and amendment No. 12 covers people who, for example, might not be in such a formal association with a person who had a right of access or visit. A person arriving, say, to take a child out to work would not have an association in any formal sense with the institution but would have the practice of visiting the institution. The purpose of amendment No. 12 is to cover that situation and that is the distinction between that amendment and amendment No. 9.

I have a similar amendment which was drawn to my attention by a person who was placed to work on a farm while in an orphanage. The issue revolves around who had responsibility in that case for placing the child in a situation where it is alleged that abuse took place. Clearly it is important that the commission encompasses a case such as that and, like Deputy Higgins, I am not sure what "associated with" will mean in practical terms if we write it into the Bill as an alternative version, as the Minister suggests. It is important that if the institution, consciously or unconsciously, assented, any placement of the child would be open to investigation. This aspect can be resolved in the Minister's response if he gives a clear definition of the intention in his amendment and the type of cases where it will come into play. More particularly, will the sort of case Deputy Higgins described be encompassed by the Minister's amendment if we agree to it?

This group of amendments relates to a concern expressed on Committee Stage that the legislation might not cover individuals who may have committed abuse on children in the care of an institution, though not in the institution itself, who have no formal attachment with the institution but are instead merely associated with it. I undertook to consider that on Committee Stage and I am not proposing amendment No. 11 which will broaden the scope of the Bill to ensure that not only does it cover persons employed by, managing or administering an institution but also persons associated with an institution. I hope this broadening will meet the Deputies' concerns in amendments Nos. 9, 10 and 12. It covers persons associated in any way, and the kinds of situations described by the Deputies are really some form of association. If someone is working on a farm, there is an association in the accepted legal term. If a voluntary body is involved, there is an association in that sense too. On the other hand, if somebody from outside comes into the institution, they are also covered under visitors, etc.

On the basis of that assurance, I am happy to withdraw my amendment. The Minister has gone some way and his definition of "association" would seem to include what I have in mind in amendments Nos. 9 and 12 and what Deputy Bruton sought to achieve in amendment No. 10.

Amendment, by leave, withdrawn.
Amendment No. 10 not moved.

I move amendment No. 11:

In page 4, line 42, after "employed in" to insert "or associated with".

Amendment agreed to.
Amendment No. 12 not moved.

Amendment No. 13 is in the name of Deputy Bruton. Amendment No. 14 is related so the proposal is to take Nos. 13 and 14 together, by agreement.

I move amendment No. 13:

In page 5, line 4, after "regulation" to insert "funded,".

This amendment relates to the section dealing with the responsibilities of the State. This amendment was introduced by the Minister on Committee Stage. The current wording in the Bill refers to effected, supervised, regulated, in whole or in part, by a Department of State, vocational education committee, health board, local authority or any other public body. The issue that has arisen in the course of discussion of the issue of child abuse generally in institutions was the extent to which the State was responsible, not only through its duty to regulate and supervise but also through its duty to adequately fund.

It appears that the wording the Minister offered in his Committee Stage amendment overlooks the issue of funding. The words used in the amendment are "effected, supervised or regulated, in whole or in part, by a Department of State". My interpretation of a word such as "effected" would not necessarily imply that the funding was included and it could refer to a situation where the State operated an institution. However, where institutions are not run by the State it seems that those responsible for their operation are effecting the management and administration of the centre. Therefore, to make it clear that we also intend to investigate the adequacy of the funding provided by the State in relation to voluntary organisations which are operating institutions of care, we should include the word "funded". That is the purpose of amendment No. 13.

Amendment No. 14 relates to a slightly different matter. Under the Children Act, 1908, the State established a system whereby children could be placed in the care of certain institutions. These children were taken from their parents, often for no reason of crime, delinquency, etc., on their part either because their parents were poor or because someone frowned on their lifestyle arrangements. The amendment the Minister put forward on Committee Stage, while it is undoubtedly an advance, does not seem to clarify whether the system under which a child was taken from its parents and placed in the care of an institution where it was subsequently abused is being adequately investigated.

Many people believe that problems arose in this area because children were not represented in court cases involving them. In many instances even the parents were not kept properly informed regarding what was taking place and their right to participate. As a result the system conspired against the interests of children and they were not adequately protected when a decision of such enormous importance to their future was being made. It is for that reason amendment No. 14 explicitly states that the system of placement in an institution by a public body, whether it be a court or otherwise, should come under scrutiny in the course of the commission's work.

I have considered the Deputy's points carefully. My concern in this section was to make clear that the remit of the commission covers all institutions where children were cared for, both those administered by the State and those in the non-State sector. I have now made that explicit. My understanding of the Deputy's amendments is that he is trying to place this even further beyond doubt. I assure him that these amendments are not necessary. The current wording of section 3 embraces both of the points made in his amendments, namely, the funding of institutions and the role of public bodies in placing children into care. In fact, the wording goes much further by simply providing that all aspects of the work of the public bodies – operation, management, regulation and supervision – should be open to scrutiny. In light of this already comprehensive and broad definition, I do not believe it is necessary to include any further elaboration.

The question of funding is dealt with in terms of the supervision and regulation, namely, how the supervision was carried out and how State, semi-State or other bodies discharged their duties in caring for children. In my opinion we have covered this point. I understand Deputy Bruton's concerns but I am advised that the point has been comprehensively covered.

I wish to seek an assurance from the Minister on a particular point. Let us consider the situation which obtained in a case outlined to Deputies in the course of their preparation for this debate where the members of a family, some of whom were as young as four or five years of age, were obliged to stand in court and wait for it to make an order which would possibly split them up and allocate them to different institutions. That represents a process and, arising from what he has just stated, will the Minister provide an assurance that that said process comes within the remit of the commission? This is an extraordinarily important point because decisions can often be taken which lead to the institutionalisation of mere infants, a matter with which the Bill deals in detail. Is the Minister in a position to provide an assurance in that regard? Such an assurance might influence my attitude to the amendment.

The Minister's reply was very economical and I am not clear about what he said. However, my interpretation of his comments is that supervision includes funding. A layman would not interpret the term "supervision" in that way. If most people were asked the nature of the Department of Education and Science's supervisory role, they would state that it involves the visits its officials might make on occasion, the inspectorate it might put in place and the reports it acts upon. Funding is a separate issue and involves the extent to which adequate resources are provided by the State to support various activities in the institution in question. I do not believe funding is automatically or logically contemplated by the word "supervision". These terms are not defined under the section which deals with definitions and, therefore, we are not in a position to clarify what is meant by supervision.

Like Deputy Higgins, I am not satisfied that the Minister has dealt with the issue of the process under which children were placed in institutions. We know from the evidence that only 5% of children who were placed in institutions had been found to be involved in delinquent behaviour of any sort. The vast majority were brought before the courts for institutionalisation without any evidence to prove they had been involved in wrongdoing. It was simply a case that someone had decided that these children were not being reared in a satisfactory home. In many instances, the definition of the term "satisfactory" was not robust and it would not be acceptable in current circumstances. It was merely a case that people did not approve of the lifestyle of the parents of many of these children. However, that did not necessarily mean that these children were being reared in unsafe or unsound homes.

The children in question were brought before the courts, they were not represented in the vast majority of cases and crucial decisions were made about their care. We know that, sadly, many of those decisions led to the children having terrible experiences while in institutional care. Before we conclude our deliberations on this matter, the Minister must provide clear and categorical confirmation that the issues to which I refer are dealt with under the section. We must be in a position to do more than take the matter on faith, the Minister must supply a definition over which he can stand – on the basis of legal or other advice – to the effect that these words mean what he presents them as meaning. A layman reading the section would not see it in the way outlined by the Minister.

The Deputy is basically seeking an account of what was done or information on how the work was carried out. In that sense, the money or funding that was expended is included. What we need to consider is the amount of money involved and the way in which it was expended, which comes under the headings of supervision and management. I am assured that this is covered. To satisfy the Deputies, I could include the word "funded" although it will be different from the wording in Deputy Bruton's amendment. I propose that in line 4 of page 5 after "supervised" to insert ", funded". The phrase would then read "administration, operation, supervision or regulation effected, supervised, funded or regulated". If there is agreement, I will make that amendment. It will make it more explicitly clear.

The Minister proposes to amend the amendment to read "In page 5, line 4, after the word "supervised" to insert ", funded"." Is that agreed? Agreed.

Deputy Higgins asked about the court and somebody waiting in court. We are not entitled to interfere with the judicial process in the courts. That is a separate area. Obviously, if the child was held in an institution when going to or from court or while the court was sitting, it would be included. However, the process in the court is a matter for the courts and the judicial process.

I accept that. Once the judge is behaving within the Courts Acts it is a judicial matter. That is ring-fenced. However, consider a situation where a group of orphans are rounded up and brought into the court by a garda. Some of them might be four or five years of age and they are scattered to different institutions. My argument is that the judicial process has not commenced properly in that case. I am discussing the business of collecting and scattering the children. That is not a judicial process but a policy issue.

I am saving myself from being provoked into considering what judges should or should not do in relation to many of these institutions. They were in a unique position, better than many of the visiting committees. They could visit any of these institutions at the drop of a hat, something a Member of the Oireachtas or a visiting committee could not do. How many of the judges did it? That can be left for history to judge.

The treatment of children who were either deprived of their parents or whose parents were "found deficient" in some way is something for which the process has not begun. The other part is that what their lordships on the bench would be deciding at that stage would be something under the 1908 Act. However, there was nothing in that Act which gave them jurisdiction. If the system was arbitrary, improper and loose, why should the commission not look at it? Some of the people who are interested in appearing before the commission and who are in communication with me and other Deputies have a most traumatic memory of their day in court. They were guilty of nothing, five or six years old and waiting to be told what was to happen to them. That is not a judicial decision, rather it is an issue regarding the institutionalised care of children.

I do not seek to interfere with what their eminences decided when the bench properly executed its duties. I am more interested in what was happening at the periphery.

What is excluded from consideration by the commission must be kept to a minimum. Whether a child was adequately represented before the court is worthy of investigation. The decision of the court on the evidence as presented cannot be revisited except on appeal. However, we are seeking an assurance that the cover of what is excluded in the court will not be thrown so wide as to exclude the entire process whereby the children were brought before the court without adequate representation or proper scrutiny of why they were there in the first place.

There was no charge against them.

There were no charges and no allegations of misbehaviour. That process must be exposed to the maximum extent of scrutiny. I am disturbed that the Minister has indicated a substantial exclusion in this regard. I hope he can give an assurance that the exclusion will apply solely in relation to a decision in a particular case by a judge who was entitled to make that decision.

Deputy Higgins agreed that we cannot interfere with the judicial process. However, all circumstances leading to that and surrounding it are covered. Section 4(1) provides that where the commission is satisfied that such abuse has occurred its function is "to determine the causes, nature, circumstances and extent of such abuse". The circumstances are wide ranging and mean any of the circumstances related to the occurrence. That offers a broad scope.

What is excluded?

When it comes before the courts?

What if a court made a manifestly wrong decision? As we have seen in other instances, wrong decisions can be made. Is that excluded from consideration by the commission?

The commission will not review the decision of the court. It will review the circumstances leading to and following the decision but it will not review the judicial process in making its decision at the time. It can probably point to the laws that operated at the time and to the other circumstances. However, the decision in individual cases will not be open to review by the commission.

There will be an opportunity for people to express their views about what happened, why they were there, how they came before the courts, how trivial the original complaint or alleged offence was and how they were ultimately treated. That information will come out in the report but the decision made by the judge in an individual case will not be subject to review in this process.

Amendment, as amended, agreed to.

The Deputies are discussing amendment No. 14 and are moving outside the rules for Report Stage.

Bill recommitted in respect of amendment No. 14.

I move amendment No. 14:

In page 5, line 8, after "body" to insert "and the placement in such institution by any public body".

I made a further amendment to facilitate Deputies and to improve the clarity. I do not accept amendment No. 14.

Nobody wants to undo or reflect upon the decision of the judge per se. However, let us say a group of children who have been orphaned are before the court. What if the judge decides, as happened in one case, on the basis of the children's ages? Pointing to a child he asked his age and on hearing it said: “He goes to X institution”. He then proceeded to the next child and the family was split up. The issue of the division of the siblings is a policy issue in child care. The issue the judge decided on is placing them in care by utilising such power as he or she, being the judge, has. Is the Minister saying that the judge's decision in the judicial process is intact, but that the policy decisions that preceded, surrounded and are consequential to it are also included? I refer to the case I have mentioned because it will arise later. The decision to break up a number of siblings and put them into different institutions may be on foot of the same order. I do not contest the order about placing them in care, but I raise the policy issue of dividing the family.

I do not expect the judge to be open to review, but the facilities provided and the system that operated would be, so there would be every opportunity to review that aspect.

That is my point. I thank the Minister.

I understood from Committee Stage that the judicial process was included. I am confident the Minister gave such an assurance at that Stage. It is something of a shock to me to find that these decisions cannot be looked at as part of a review. I thought they undoubtedly would be looked at. We have seen judges make manifestly wrong decisions in the past and I do not see why a review of this kind would not also look at that issue. If a wrong decision was made to commit a child it raises the question of liability, on the State and on any institution involved.

What statute law prevents the commission from considering the whole process, from beginning to end, of where a child was taken from its family and ended up in an institution? I did not understand an area was ring-fenced to prevent the commission addressing it. The lack of representation for children was wrong and that could not be ring-fenced against inquiry on the basis that it was acceptable. It should be properly within the remit of the commission.

We are only trying to find matters of fact in the commission. It will not rule on liability or whatever, so I do not see why a section of the process should be ring-fenced in this way. That was not my understanding from Committee Stage. I am not a lawyer, so I do not know if we are treading on profound constitutional waters by suggesting that wrong decisions should be reviewed by the commission. However, I would like to see them reviewed and following from that, perhaps the commission could ascertain the causes of them, whether it be in the representation the child received, the way the cases were presented or whatever.

It is a question of each individual case. It is, as the Deputy has suggested, the question of the separation of powers regarding a decision made by a judge. I assure Deputy Higgins that all the State and other arrangements that preceded and subsequently followed would be included.

I will withdraw the amendment because I do not have sufficient information to say that we can assert such a right for the commission. However, I am not satisfied with the Minster's outline of the precise reason this cannot be done. Referring to the separation of powers is one thing, but a member of the Judiciary is conducting the inquiry, it is not being conducted by the Legislature, so I do not understand the Minister's argument and am not convinced by it. Nevertheless, I accept he has received legal advice which is the basis for his advice to the House.

Amendment, by leave, withdrawn.
Bill reported without amendment.

Amendments Nos. 16, 29, 30 and 31 are related to amendment No. 15 and all may be taken together by agreement.

I move amendment No. 15:

In page 5, line 32, after "satisfied," to insert "with the consent of both Houses of the Oireachtas and".

This is self-explanatory.

It is important that some of these issues would be laid before the Houses of the Oireachtas by way of a resolution. I understand the Minister is proposing that would be the case.

As agreed on Committee Stage, I have put down a number of amendments – Nos. 16, 29 and 31 – designed to encompass amendments Nos. 15 and 30. Amendment No. 16 provides that the Minister will seek the approval of the Oireachtas before winding up the commission. Amendment No. 29 provides that the Minister will only extend the period of two years in which the commission will work by order and amendment No. 31 provides that the Houses of the Oireachtas must approve this order before it is made. I trust these amendments will deal with the points raised by the Deputies.

I thank the Minister for his reply and I will withdraw amendment No. 15.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 5, between lines 38 and 39, to insert the following:

"(5)When the order under subsection (4) is proposed to be made, a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”.

Amendment agreed to.

Amendments Nos. 18, 43 and 49 are related to amendment No. 17 and all may be taken together by agreement.

I move amendment No. 17:

In page 5, line 43, after "abuse" to insert ", and make submissions,".

On foot of amendment No. 18 in the name of Deputy Higgins and following from our discussions on Committee Stage, I am proposing amendments Nos. 17, 43 and 49. I understand Deputy Higgins had in mind a broadening of the procedures for recounting abuse to explicitly allow for both oral testimony and the making of submissions. I am happy to propose these amendments to allow for this provision. Amendment No. 17 relates to submissions made to the commission, amendment No. 43, to the confidential committee and amendment No. 49, to the investigative committee.

Amendment No. 18 in my names reads:

In page 5, line 43, after "Committee" to insert "and an opportunity to make observations, reflections or other submissions (personally or through their legal representatives) to a Committee on any matter relevant to its functions".

The Minister has gone a considerable distance towards meeting what I had in mind here and I will be happy to withdraw the amendment on that basis.

Throughout all this process it is very important that balance is maintained. Where the Minister intends to allow submissions on behalf of those who have been victims of abuse, does he also intend to facilitate some of the bodies who approached the Oireachtas Joint Committee on Education and Science who were equally anxious that there would be opportunities to make submissions. Balance would appear to require that the possibility of making submissions should apply to all quarters. Has the Minister been conscious of that need for balance in his amendments?

The point raised by Deputy Bruton is important and requires clarification. In making submissions or in giving oral account of abuse suffered, there are a number of survivors or victims of abuse in respect of whom existing files and information exist which may be traceable through the Departments of Education and Science, Health and Children or Justice, Equality and Law Reform, or individual health boards depending on how they came to be in a specific institution. Will the Minister clarify if he envisages that they will be given access to documentation which relates either to themselves, which is held in the records of Departments or residential homes, or to the institution in which they were cared for during the time they were in care? In the context of their having gained access to that information, will they be able to make submissions to contradict statements which may be contained in such documentation?

The concern in this issue is that people in charge of certain institutions may have referred in background files or diaries to some of those who were the victims of both physical and sexual abuse in a manner they regarded as justifying using violence towards those victims and which may have been inaccurate. I know a trawl of records is ongoing and there is a concern to clarify to what extent an individual will have access to those records in advance of a hearing before a committee of the commission and to what extent he or she will be able to make an advance submission on what is contained in those records and to contradict it if the records are untrue. Will the Minister clarify that in the context of the amendment to which he refers?

Section 4(5) covers the question of submissions and is open and broad on that: "The Commission may invite or receive oral or written submissions". There is no limit. Regarding Deputy Shatter's point about files in Departments, as the Deputy knows from his experience, many files are now provided and a search is ongoing through some 40,000 files. This is being done by an archivist and the information is being provided. People will have access to the files they want and which relate to them. The issue of institutions is one for the commission. If it grants access to their files, then those will be available. I believe the commission will be open about that.

Amendment agreed to.
Amendment No. 18 not moved.

Amendments Nos. 19, 20 and 44 are related and may be taken together by agreement.

I move amendment No. 19:

In page 6, line 10, after "institutions" to insert "and the role of the State or any of its organs (including the Minister, his or her Department and the courts)".

This is an important amendment. Those who made representations following the decision to establish the commission made a number of points. One of those has already been covered by Deputy Bruton and it concerned people having the right to make submissions as well as appearances. I agree with him that old people who find themselves interacting with the commission should do so on a basis of equality of treatment and fairness. I hope that will prevail.

The amendment allows the State to be investigated. When I tabled it, I had in mind a defence which I already noticed being made following public discussion of abuse. It was along the lines that the people involved were doing their best in conditions where the State did not accept its responsibilities and at a time when insufficient funds were available. The only way the rest of the work of the commission can be saved from that type of generalised defence is by including the State and its organs in the process.

The Minister has already granted the term "funding" regarding an administrative dimension. I propose to include the words "and the role of the State or any of its organs (including the Minister, his or her Department and the courts)". The last item does not interfere with that which is proper to a judicial decision. It merely concerns the role of the courts or the territory they occupied in this matter. The appearance of orphans in courts for a decision to be made on which institution would take them and whether they would be broken up, scattered or allocated to different institutions is a social fact rather than part of a legal decision. There is a distinction between a legal process and a judicial process and these decisions were more concerned with a legalistic ethos rather than legal texts under which a judicial decision would be made.

The other amendment in the name of Deputy Bruton is perhaps more specific than mine. I included the role of the State and its organs, including the Minister, his or her Department and the courts. Put simply, the only way the rest of the work of the commission will be thorough is by stating that it will not examine matters in a partial sense but will examine everything. If that is done, it will be to its advantage. I say this because the defence is already emerging and has entered the popular realm about how the abuses were few, the good was great, the State did nothing, the funding was inadequate and it was great that they did what they did. I do not say that that is true but that is the rhetoric.

That defence will be heard repeatedly for several years unless we say that, if the commission is to examine duties of care, their abuse and breaches of trust, it will also examine the policy ethos in which these issues arose. The policy ethos includes the legislative atmosphere of the time and the willingness or reluctance to introduce legislation which would protect children. The long gap following the 1908 Act is an example I would give in that regard. There must also be an examination in terms of the organs of the State. Was it right to make orphans appear before the courts and for matters relating to them to be decided in a courtroom atmosphere?

I was disturbed about some of the discussion which followed the Kennedy case regarding the attitude to inspection. It seems it is possible for those who acted in an atmosphere of lax or no inspection to say inspectors were not present. The only way of dealing with that is by examining those whose responsibility it was to provide the inspection. Every other area of scrutiny gains by the torch being shone on everything. This amendment provides that the State is not exempt from any consideration.

We have, to a large extent, had this debate on the earlier amendment when we dealt with section 1(3) and I will not rehearse those arguments. It is important the principle be established that we do not-ring fence any part of the process except that which is required in respecting the constitutional right of a judge in court. That is very important. The State had many responsibilities along the way, as we saw from the documentation laid before the committee. I await the Minister's response, although I suspect he will repeat what he said in regard to the earlier section.

I appreciate that the commission cannot set itself up to effectively review decisions made by the courts but one of the concerns in this area is that as a consequence of court decisions children were inappropriately placed in institutional care, possibly due to the fact that the courts lacked the adequate assessment and back-up facilities to enable them to make appropriate decisions as to how children with family difficulties should be dealt with. That is a relevant issue which the Minister may tell us can be dealt with under the management and administrative provisions relating to children in care. I am not sure it can because it relates to a decision made prior to a child being placed in an institution which may have been inappropriate.

This is an important issue because it does not only affect decisions made in the 1950s, 1960s, 1970s and 1980s. As matters stand in the year 2000, the probation and welfare service is grossly understaffed and lacks the capacity across a broad range of child care and family issues to provide the resources necessary to carry out essential assessments which District Court judges request to facilitate them in making considered decisions on how to deal with particular children in difficulty, children in respect of whom care applications are made or where there are custody disputes. The Laffoy commission may have a valuable contribution to make in that context, albeit that part of the problem simply derives from a lack of Government commitment and resources to ensure that the courts have the type of probation and welfare and child care services required to facilitate judges, who essentially only have legal training and expertise, to determine in the best interests of a child how to address a particular family difficulty or difficulty with regard to the care of an individual child.

These amendments deal with the question of the role of the State in relation to the care of the children and the role of the commission in investigating that role. I tabled an amendment on Committee Stage in which I provided a clear and explicit statement that the commission will be empowered to consider the role of vocational education committees, health boards, local authorities and Departments, not only in relation to their operation and management but also in regard to their regulation. This is a far- reaching and broad statement which I am satisfied will give the commission the necessary authority to undertake its task in a complete and comprehensive fashion.

On Committee Stage and again today, Deputies raised the possibility of investigating the role of the courts through the commission. It is not my intention that this should occur. The explicit separation of powers provided for in the Constitution means that it is doubtful in any case whether the Oireachtas could legislate for such a provision.

Deputy Shatter raised the issue of children being inappropriately placed because places were not available or because information was not made available to the courts in advance. Such a situation could, I believe, be included but the decisions of the court would be precluded. Any deficits in terms of the approach to the courts or available facilities would be open to investigation in so far as the commission might consider that such investigation was necessary. Section 4 is very broad-ranging. Section 4(1)(b)(iii) states:

without prejudice to the generality of any of the foregoing, to determine the extent to which–

(I)the institutions themselves in which such abuse occurred,

(II)the systems of management, administration, operation, supervision, inspection and regulation of such institutions, and

(III)the manner in which those functions were performed by the persons or bodies in whom they were vested,

contributed to the occurrence or incidence of such abuse.

The general circumstances in which an abuse occurred are therefore comprehensively covered.

I disagree with the Minister. The legislation does not seem to envisage the commission being in a position to examine the capacity of the courts as they then were or as they are now to determine the appropriate manner in which to address issues affecting the future care of a child. I am not talking about reviewing an individual decision made by an individual judge, rather about the capacity of the courts in regard to the manner in which they are structured and in regard to the back-up resources with which they are provided.

I presume the Minister is familiar with the report published by the Law Reform Commission which recommended a radical reform of the court system in the area of family law and proposed the establishment of a family court system. The commission's report trenchantly criticised the failure of Government to implement a family court structure with the necessary professional back-up. The report was published five years ago but few, if any, of its recommendations have been implemented. If the Laffoy commission were requested to consider the courts' capacities as they were in the past and are currently, I expect it would again highlight the huge gaps previously identified by the Law Reform Commission.

The only reason the Minister is excluding this issue – and I think he is being disingenuous in suggesting it is included – is that the Government does not want the publication of an up-to date report on the capacity of our courts to address issues in regard to child welfare. The courts did not have adequate capacities in the 1950s, 1960s, 1970s and 1980s and it is disgraceful that in the year 2000, they are still crying out for back-up services which, to date, the Government has not been prepared to fund or provide.

We have come through a Committee Stage debate during which the Government's desire for openness, transparency and inclusion was made very clear. We are following along the lines proposed by the commission and are following the terms of the report without any alteration. The capacity of the whole system is included but decisions in regard to individuals are not.

The Bill does not make any reference to the capacity of the courts.

There is no doubt that the capacity of the system which applied to young people in the past would be included.

Amendment put.

Allen, Bernard.Barnes, Monica.Barrett, Seán.Bell, Michael.Belton, Louis.Bradford, Paul.Broughan, Thomas.Bruton, Richard.Burke, Liam.Burke, Ulick.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Coveney, Simon.D'Arcy, Michael.Deasy, Austin.Deenihan, Jimmy.Enright, Thomas.Farrelly, John.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Gormley, John.Hayes, Brian.Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.Kenny, Enda.

McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Perry, John.Quinn, Ruairí.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.Yates, Ivan.

Níl

Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, David.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Collins, Michael.Cooper-Flynn, Beverley.Daly, Brendan.Davern, Noel.de Valera, Síle.

Dempsey, Noel.Dennehy, John.Doherty, Seán.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael. Lawlor, Liam.

Níl–continued

Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Dea, Willie.O'Donnell, Liz.

O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Kennedy, Michael.O'Malley, Desmond.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Treacy, Noel.Wade, Eddie.Wallace, Dan.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Barrett and Stagg; Níl, Deputies S. Brennan and Power.
Amendment declared lost.

I move amendment No. 20:

In page 6, line 10, to delete "and" and substitute the following:

"(III)the State through the legislative framework; the system of Justice; the systems for funding, regulation and inspection of institutions; the systems of investigation and responding to complaints, and".

Is the Deputy pressing that amendment?

In view of the vote we have just had I do not think it would fulfil a purpose. It is on the same issue.

Question, "That the word proposed to be deleted stand", put and declared carried.
Amendment declared lost.

Amendments Nos. 21, 45 and 50 are cognate and consequential on amendments Nos. 32, 46 and 51 respectively. Amendment No. 24 is related and amendment No. 33 is an alternative to amendment No. 32. Amendments Nos. 21, 24, 32, 33, 45, 46, 50 and 51 may be discussed together by agreement.

I move amendment No. 21:

In page 6, line 17, to delete "a report" and substitute "reports".

Following our discussion on Committee Stage, I have provided for an amendment to the Bill to meet Deputies' concerns. Essentially, the Deputies' amendments sought to provide that the commission would report on an interim basis in advance of its final report.

I appreciate that there are significant accountability and transparency issues here and I have provided for the thrust of these amendments in my amendments. Amendment No. 21 broadens the functions of the commission to recognise that it will make reports rather than a single report. Amendments Nos. 45 and 50 provide a like provision in relation to the investigative and confidential committees. Amendment No. 32 provides that the commission shall prepare an interim report not later than one year after its establishment and may prepare such other reports as it deems necessary. Amendments Nos. 46 and 51 provide for similar provisions in respect of the investigative and confidential committees. I trust that this meets the concerns of Deputies.

I accept that meets the concern that I raised in respect of amendment No. 33.

My amendment No. 24 is related.

Yes, that is included. We have made it one year.

The only difference is between six months and one year. I am happy to withdraw my amendment on foot of the Minister's response.

Amendment agreed to.

Amendment No. 22 is out of order. Amendments Nos. 38 and 39 are related to amendment No. 23 and all three may be discussed together by agreement.

Amendment No. 22 not moved.

I move amendment No. 23:

In page 7, between lines 3 and 4, to insert the following:

"(7)The Commission shall maintain a full record of its proceedings and those of each Committee.".

This amendment would strengthen the Bill considerably in relation to the keeping of a record to which reference might be made for any one of a number of purposes. It is stronger than the provisions that are already being made.

Following our discussion at committee, I have provided for amendments Nos. 38 and 39 to ensure that the commission maintains records of its work. I hope this will encompass the amendment proposed by Deputy Higgins.

In the context of the record, people who are survivors of child abuse will be represented and cross-examined by the legal representatives of those accused. On the issue of legal representation of those who are survivors of child abuse, the Minister has made provision for a sum of £800 to be set aside for those who could not afford legal representation, but is he satisfied that throughout those lengthy hearings, a person who is a survivor of child abuse can be adequately represented legally on such an estimate? It seems the Minister is making wide provision for the legal costs of those accused but a very curtailed provision for those who are survivors of child abuse. It strikes me as being of concern and an imbalance. It is important that we strike a balance in all these matters.

I tabled an amendment which the Ceann Comhairle ruled out of order concerning ongoing legal representation for survivors as a class. On Report Stage we should hear the Minister's views on legal representation because it is crucial that those who are survivors of child abuse would have adequate legal representation. That is not to say we want the sort of legal representation that has caused a scandal in other tribunals, but we want adequate representation and that all sides would be treated fairly and equally in that regard.

We have published the draft scheme – I said we would publish it before the Committee Stage was finished and I have done so. It is a draft scheme and is more or less along the normal provision for people who are the survivors in this case. Obviously there will be a difference between people who are accused and people who are survivors and making accusations, but the accused person may need more substantial representation. The draft scheme is there to be used. It is for the commission and it will advise on it.

On this point, what is the merit of including a figure when the term "adequate representation" would have done? The Minister says it is a matter for the commission and if one wants to avoid the suggestion that an open-ended purse is available to one side of the argument or to some people who may appear and that others are limited to an upper figure, why use the figure at all? Why not use a term such as "adequate"? As the Minister has said, the commission can exercise an opinion on what might be an abuse or some other formulation can be found. Why use an upper figure? I have not heard the case for this.

I will reiterate what, as the Minister knows, I stated earlier. I do not want to be perceived as engaging in some sort of special pleading or vested interest because the law firm in which I am a partner acts for some of the people who are the survivors of abuse. There are many other survivors represented by other law firms. My firm does not have a monopoly in any way in this matter and whether my firm was involved or not, I would making the following points.

I support the establishment of this commission and I want it to proceed with its work. Much preliminary work has been undertaken. I regard as quite extraordinary the scheme for the payment of legal expenses pursuant to section 20 of the Bill, as detailed in draft form by the Minister. It is extraordinary because I would expect that there are many people who are the survivors of abuse who find it extremely traumatic even today to set out the abuse they suffered. To formulate a submission to the commission, they will require legal help and a great deal of time will be spent by lawyers acting for them in putting together comprehensive and coherent submissions.

Bearing in mind the question I raised previously with the Minister, I expect that they would be properly advised by lawyers. If they are to make a submission about their individual situation, it is very much in their interests and of great importance that they first have access to background documentation, specifically relating to them and to the records that exist. That will take a great deal of time and will have to be gone through and then they will appear before the commission and may well be represented.

In that context I advise the Minister that there is no reality in the scheme he published. It creates the extraordinary anomaly that if I am the victim of abuse, I am entitled to £800 worth of legal help but if I am accused as a perpetrator of abuse and if I am an abuser, if I have sexually abused or beaten children, there is no limit on the expenditure I can incur, such as the services of senior counsel, maybe two senior counsels, junior counsel and solicitors and perhaps thousands and thousands of pounds of legal expense. Yet again the victims of abuse are being treated as second class citizens. They are being treated as people who are not as worthy of proper legal assistance and help as those who they may accuse.

I conclude on this because I appreciate limited time is available on Report Stage. It may be that those who are accused will come before the commission and deny the accusations made. The commission may well have to make an adjudication in its report as to who is telling the truth. It may be that a victim or a survivor will want the opportunity to contradict what is said about him or her by the person rebutting an accusation. They may need legal help for that. Will there be a situation where someone who alleges they were abused may be subject to cross-examination by senior counsels charging brief fees of £15,000 or £20,000 and £2,000 a day to sit on the commission for which the State will pay and that those who are victims of abuse and have survived abuse are to be left either bereft of legal assistance or to have a sort of "yellow pack" assistance whereby the only payment that are provided for lawyers allows them to briefly appear and then disappear? There is no reality in this scheme.

I appreciate that there is a need for this commission not to become unduly burdened by legal technicality and to allow it in a very practical and inquisitorial way to proceed with its work, which is the way I hope this commission will work. However, I see problems along the way if this scheme is not revised. I could see the problems being sufficiently great that if a scheme is not put in place that appropriately protects the legal rights of those who suffered abuse, that the schemes brought forward by the Minister may end up under court adjudication and be found to be unconstitutional as treating people unequally.

It would be most regrettable if the work of this commission was delayed or hampered by court applications having been made because the Government has not properly thought through how the commission will work in practice and the need to protect the rights of those who were abused, while those against whom accusations are made have an opportunity to properly respond to those accusations.

Acting Chairman

I remind the House that there have been changes in Standing Orders relating to debate on Report Stage which, in effect, mean that Members can speak twice. The mover of the motion may speak three times. We are threatening to be in breach, as it were, at this point. The Minister may wish to respond and I will allow him to do so briefly.

We should be clear that it is the commission which is carrying out this inquiry. The victims will be there as witnesses. We are examining the issue of continuing legal representation for victims, where they may want to get matters together and have information well prepared for a group that may be seeking representation. We are looking at the issue, but this amendment is not about any of those issues as far as I can see – we have strayed a long way from the amendment. The victims will have the support of counsellors and families. That is what was asked for. There will be a draft scheme in place for consultation with the commission itself once it is established. All I can say beyond that is that we are examining the issue of continuing legal representation for victims.

This amendment is addressed by the Minister's amendments.

Amendment, by leave, withdrawn.
Amendment No. 24 not moved.

I move amendment No. 25:

In page 7, line 13, after "it" to insert ", including changes in the coverage of the Statute of Limitations".

On Committee Stage we discussed the restrictions of the Statute of Limitations, but since that debate the Minister for Justice, Equality and Law Reform moved an amendment to the Statute of Limitations Bill which opened up the case of trailblazers, so to speak, who were being shut out by the Statute of Limitations. However, we still have the issue of those who suffered physical abuse as opposed to sexual abuse being denied recourse to the civil courts by the Statute of Limitations.

Ms Justice Laffoy and her commission should be asked to make recommendations to the Oireachtas on this issue. The Minister will say this issue has been referred to the Law Reform Commission, but the Laffoy commission will have had first hand, intimate knowledge in relation to the running of institutions and the abuse that occurred in them. That commission would have recommendations that would be very important for the Oireachtas to consider if amending the Statute of Limitations for those who suffered physical abuse is considered. It seems indefensible for the Government to seek to draw distinctions between those who suffered sustained physical abuse and those who suffered sexual abuse. We should hear the commission's view on this issue at an early date for one of our interim reports, if that is how the commission feels it should be handled.

In my view the commission, as an independent statutory body, may make whatever recommendations it considers appropriate. It is not appropriate that the House should set out in advance, except in the broad terms now provided for, what the recommendations should deal with. However, I have undertaken to write to the commission to express to it the nature of the debate in the House on this Bill and I will include a reference to meet the wish expressed by the Deputy.

The Statute of Limitations Bill has been running in tandem with this one and has either completed or is about to complete its passage through the Seanad and return to the Dáil. As Deputy Bruton said, it creates the extraordinary anomaly whereby damages can be awarded to the survivors of sexual abuse but not to those who have suffered physical abuse. In the context of Deputy Bruton's amendment, does the Minister know what progress the Law Reform Commission has made with this issue since it was referred to it in May 1999 by the Government? Does the Minister have a timeframe within which the Law Reform Commission report will be published? Did the Attorney General ask the Law Reform Commission to report on this matter within a particular timeframe? Will the Law Reform Commission publish a working paper before publishing a final report? Will it hold a consultative meeting, as it sometimes does? Will the report be received from the Law Reform Commission before the end of the year?

I ask these questions because I am conscious that we envisage that the work of the Laffoy commission may take two years. It is a grave injustice that the Statute of Limitations Bill is to amend the law where one can seek compensation if one is the victim of sexual abuse but not of physical abuse. We will discover that for many people that distinction is inoperable when cases for damages are brought before the courts because on occasions sexual and physical abuse are so intermingled they cannot be dealt with separately.

I am anxious that the Bill the Government seems intent on steamrolling through in its present form, with the removal of references to any form of abuse other than sexual abuse, will be amended as soon as possible. I am optimistic enough to hope that the Law Reform Commission will take the view that it is illogical to address one type of abuse in a particular way and not another. I ask that the Minister respond to these questions. Has the Government made a policy decision on whether, if the Law Reform Commission recommends that physical abuse should be dealt with by way of an amendment to the Statute of Limitations identical to that now being made regarding sexual abuse, it will implement that recommendation without undue delay or will the report be left gathering dust on the shelves of the Department of Justice, Equality and Law Reform?

I understand that the Law Reform Commission expects to produce a consultation paper in the near future on the application of the Statute of Limitations in cases of physical abuse in childhood. The timeframe of the Law Reform Commission is a matter for the commission itself. In relation to the request Deputy Bruton made in connection with the amendment, I accept the request and will write to the commission.

Amendment, by leave, withdrawn.

I move amendment No. 26:

In page 7, line 13, after "it" to insert ", including methods of compensation".

This refers to a similar issue and the Minister agreed on Committee Stage to refer the matter to the Laffoy commission.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 7, line 27, after "persons" to insert "where it is satisfied that they were significantly culpable".

This amendment refers to the issue of findings by the commission. It will be able to reach findings in relation to the management, administration, operation, supervision and regulation of an institution and persons in whom they were vested and it may identify persons who were guilty of abuse.

There is a need to qualify the circumstances in which persons will be named and there will have to be a significant degree of culpability in relation to those who are named. Some people were named in passing in other tribunals of inquiry of this type whose culpability was minimal, if it existed at all, but their being named caused them much difficulty. The power of naming will have to be used judiciously. I have proposed that naming will only occur where the commission is satisfied the persons so named were significantly culpable. I am interested in hearing the Minister's view. It is a case of trying to strike a balance and ensure this is handled fairly. Obviously, we must get to the root of any abuse. However, those involved in the running of institutions and who were not culpable should not be named unless the commission has a substantial reason to do so.

This is implicit in the fair procedures. People will not be named without the due process of natural justice.

If the Minister is saying that those who were not culpable will not be named, I am satisfied. One could be named even if one had received due process. We should not have the random naming of people involved who were not culpable because in the public mind they will be associated with those who were. I take it the Minister is assuring me that those who were not culpable but who were involved in administration will not be named.

That is correct.

Amendment, by leave, withdrawn.

I move amendment No. 28:

In page 7, line 31, to delete "not".

The commission will make findings relating to the culpability of individuals guilty of abuse and the way institutions were managed but it will not make findings in particular instances of alleged child abuse. I am concerned that firm findings of fact can be made that abuse occurred but victims and survivors of abuse who reported it will not be vindicated by the commission, who will be unable to say it found that abuse did occur in individual cases and victims' reports are substantially right.

I do not know how this issue will be handled but it is difficult to understand how the commission will reach a finding of fact that a person was guilty of abuse but will not find that certain people were abused. This provision may make some people reluctant to present their cases before the commission if they feel they will not have the vindication of a finding that they were abused. This is a lingering concern.

I know Ms Justice Laffoy chose this approach and is presenting it as the best balance, as opposed to a more detailed inquiry which would be necessary to make findings of fact. However, I am concerned that some people will prefer to take a civil action where a finding of fact can be made and the commission's work will be curtailed as a result.

The Deputy answered his own question. The commission, having considered its terms of reference and the powers it would need, concluded in its report that the legislation should preclude the commission from making specific findings of fact in relation to specific allegations of abuse. The primary reason for the restriction is that many of the cases either are already or are likely to be the subject of civil litigation or criminal proceedings. For the commission to make findings in individual cases would, therefore, be to prejudge these proceedings. This would risk interfering with the judicial process and would be unconstitutional. Deputy Bruton is naturally concerned about people feeling they are vindicated. However, they will be vindicated in the findings.

If that is the case and the commission in making a finding of fact might interfere with the conclusions of a civil or criminal case and, therefore, stray past the boundaries of the constitutional remit of the courts, why not omit section 5(3)(d)? If the commission is possessed of such discretion and exercises it in the way described by the Minister why is paragraph (d) necessary? The advantage of this being omitted would be that the commission could then conclude what was proper and might even arrive at the conclusion suggested by the Minister. If it did, paragraph (d) is redundant.

I would find it extraordinary if Ms Justice Laffoy asked for an explicit proscription of findings of fact. That might be the view of the commission now, in advance of its hearings. However, when the hearings proceed, this might change and the commission could decide to attempt, without breaching the Constitution or interfering with the integrity of civil or criminal proceedings, to make a statement. The commission could do this if paragraph (d) was omitted. However, with its inclusion, the commission is deciding in advance that in no circumstances should it attempt to take such a course of action. Paragraph (d) seems to be unusually restrictive. Everything mentioned by the Minister can be achieved without this paragraph, which would also allow for more flexibility.

The commission wanted this to be put beyond doubt, which is what we have done. Otherwise there could be a legal challenge. It is the considered view of the commission. It asked us to make this provision and we have done so.

On the basis of the Minister's assurance that the commission feels and will continue to feel this is the best way to conduct its business, I withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 29:

In page 7, line 46, after "specify" to insert "by order".

Amendment agreed to.
Amendment No. 30 not moved.

I move amendment No. 31:

In page 7, after line 46, to insert the following:

"(c)When an order is proposed to be made under paragraph (b), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.”.

Amendment agreed to.

I move amendment No. 32:

In page 8, to delete lines 1 to 6 and substitute the following:

"(6) The Commission–

(a)shall, not more than one year after the establishment day, prepare an interim report on such matters relating to the inquiry aforesaid or otherwise relating to its functions as it may determine, and

(b)may, if and whenever it considers it appropriate to do so, prepare other such interim reports,

and subsections (2), (3) and (4) shall apply to such interim reports as they apply to the report referred to in those subsections.

(7)A report under paragraph (a) of subsection (6) shall be published to the general public by the Commission in such manner during the year after the establishment day as the Commission may determine and a report under paragraph (b) of that subsection shall be so published in such manner and at such time as the Commission may determine.”.

Amendment agreed to.
Amendment No. 33 not moved.

Acting Chairman

Amendments Nos. 34 and 35 are related and may be discussed together by agreement.

I move amendment No. 34:

In page 8, line 11, after "Chairperson" to insert "and bearing in mind the need for members to have the confidence of those who suffered abuse and those who may be called to account for the running of institutions".

This amendment concerns the membership of the commission which was discussed on Committee Stage. Concerns have been expressed that members of the commission should have the confidence of both sides. It is important that everyone has confidence in the membership of the commission. Some concerns have been expressed that certain members do not have the confidence of all those who might present their case. It is important that the Government convinces those whom we want to present their cases to the commission that the membership it intends to select is the most appropriate, fair and balanced to hear them.

My amendment states that the Government should bear in mind the need for members to have the confidence of those who suffered abuse and those who may be called to account for the running of institutions. This amendment, if accepted, would make it obligatory for the Government to seek to convince those who have concerns about any prospective members of the wisdom of the selection which the Government intends to make. It does not force the Government to make any decisions, but it does force the Government to bear in mind the need for confidence across the board. It is not an unreasonable amendment. It will give the Government the flexibility to consult and discuss the different names which it intends to put forward.

As I said on Committee Stage when I moved this amendment, there is no suggestion on my part that any of the prospective persons, which the Government may have in mind or whose names have been mentioned, are anything but of the highest character and no doubt suited to do the task. However, it is equally important that they have the confidence of everyone involved. Clearly a job of work must be done by the Government to convince all those concerned that it is the right selection to do this job.

I hope the Minister may tell us that some progress has been made in this area because he signalled on Committee Stage that he is anxious that those whom he selects will have the confidence of all sides. I know he also has great confidence in those who he has shortlisted at this stage. I hope this is a helpful amendment which will encourage all those involved to come forward and present before the commission.

Deputy Bruton has said everything that I needed to say except for one small point. My amendment No. 35 differs from amendment No. 34 only in so far as it seeks to exclude not just those who have been involved on or in assisting the management of an institution likely to be investigated by the commission or a similar institution wherever situate, but also those who might be likely to come before the commission. In other words, I am suggesting that an abused person who might be likely to come before the commission would be affected by my amendment, as would somebody who might be involved in the management.

The thinking is that, whether one likes it or not, a person who is involved with the ethos or authority structure of the institution invariably carries some of that ambience and orientation with him or her. That was the worry on the one side. On the other, to have had an experience, such as those which the people likely to come before the commission have had, would give one a predisposing orientation towards those who had committed such actions. It was felt that the best way of handling this was to compose the commission of those who are an established distance from the matter. That is what the amendment seeks to achieve.

It is important to state that there is no suggestion that anyone in any way is impugning the good character, integrity and worth of those who have been mentioned. It is just that it is probably in everybody's best interest that these distances of which the amendments speak would be established and it probably would be conducive to maximum involvement in the work of the commission.

It is inconceivable that the Government would appoint a person as a member of the commission who had a potential conflict of interest to the extent that an institution with which he or she was associated might be the subject of inquiry.

As to Deputy Bruton's amendment, I would hope that the victims of abuse and others who come before the commission would have confidence in the professionalism and competence of the commission. However, confidence is a subjective matter for which we cannot legislate. We can try to achieve it by ensuring that there are no conflicts of interest, but ultimately we can only rely on the professionalism of the commission and the application by it of fair procedures. I would be anxious to ensure that there were no conflicts of interest.

On a point of clarification, lest my amendment be misconstrued because we are all tired, I did not confine my amendment to any suggestion that the Government would appoint somebody who had worked or administered in or advised an institution under investigation. I extended it, as careful consideration of amendment will show, to state "or a similar institution wherever situate". By that, as I stated in my introductory remarks proposing my amendment, I meant that there is a certain ethos in institutions and a certain concept of governance which comes from the authority structure from which it is difficult to distance oneself. In that sense, I was referring to a general institutional milieu from which a person might come.

The Minister, in responding to my amendment, indicated that confidence is subjective. No doubt that is the case but it is also important, if this case is to succeed, that both sides involved would have confidence in the commission and the way the business will be run. I seek that the Government would bear in mind the need to make the maximum effort to secure that confidence. There have been issues raised which would suggest that some groups do not have confidence. In my view, there is a job of work to be done to convince them that their fears are misplaced.

My amendment simply asks the Government to do what it should do anyhow. I feel my amendment is worthy because it underlines for the Government that this is what we want it to do, to set about convincing those who are going to present their case of the fairness of its selection.

Amendment put and declared lost.

I move amendment No. 35:

In page 8, line 11, after "persons" to insert "(not including a person who is or who has been involved on or in assisting the management of an institution likely to be investigated by the Commission or a similar institution wherever situate, or who might be likely to be liable to give evidence to the Commission)".

Amendment put and declared lost.

Acting Chairman

Amendment No. 37 is an alternative to amendment No. 36 and amendment No. 42 is related. Therefore, amendments Nos. 36, 37 and 42 may be discussed together by agreement.

I move amendment No. 36:

In page 8, line 23, after "appropriate," to insert "having had regard to the desirability of holding such meetings in public,".

As I said on Committee Stage, I share the Deputy's concern that the commission should conduct its hearings, as far as is practicable, in public and I am satisfied the commission will do so. To make certain of this, I propose amendments Nos. 36 and 42 which will ensure the commission and the investigative committee will undertake as much of their work as is practicable in public.

Amendment agreed to.
Amendment No. 37 not moved.

I move amendment No. 38:

In page 8, line 30, to delete "may" and substitute "shall".

Amendment agreed to.

I move amendment No. 39:

In page 8, line 31, to delete "a sufficient record" and substitute "as complete a record as is practicable".

Amendment agreed to.

Acting Chairman

Amendment No. 41 is an alternative to amendment No. 40 and they may be discussed together by agreement.

I move amendment No. 40:

In page 9, to delete lines 5 to 20.

This is an issue which we discussed on Committee Stage and it is an important amendment. The Select Committee on Education and Science, which considered the Bill on Committee Stage, received submissions from those representing institutions which provided care and those who represented survivors of abuse in such institutions. The committee considered that it was inappropriate and wrong that those who were staffing the commission should be employees of the Departments of Education and Science or Health and Children, which are under investigation by this commission for their roles in the management, administration, regulation and supervision of such institutions.

The Minister contended on Second Stage that skilled members of staff in his Department had done much work in assembling material and assisting Ms Justice Laffoy, something I accept. I know there are very skilled and undoubtedly highly principled officials involved in this work, but it is important for the protection of the Department and its staff that the staffing of the commission should be seen to be at arm's length from the Department. There should be no whiff or suggestion of a conflict of interest between those conducting the inquiries into these matters and their role as the employees of an institution which is under scrutiny.

A well established principle is that conflicts of interest must be avoided even when they are not such that people would allow their judgment to be distorted. A long established practice is that Members of the Oireachtas cannot do certain things or be members of bodies because of the fear of a conflict of interest. The public has become increasingly conscious of this in recent times as a result of the tribunals of inquiry and the suggestions of conflicts of interest creating situations which are not in the best interest of ensuring public business is done in a fair and proper manner.

It is wrong to provide that seconded staff from the Department will assist the commission in its work. It is not the way to proceed. We should second staff from any Department other than those under scrutiny. I do not suggest the commission must engage people on the open market, but from other Departments, such as the Department of the Marine and Natural Resources, where there are professional and competent people capable of reading themselves into this brief and doing a good job on behalf of the commission.

It is important that we do not pass a provision which people will later say allows for an obvious conflict of interest. Before there is any suggestion of imbalance, we should delete these sections and allow only section 9(1) to stand, which states:

The Commission may, with the consent of the Minister and the Minister for Finance, appoint such and so many persons as the commission may determine to be members of the staff of the Commission.

There is no need for me to repeat the arguments which have been made by Deputy Bruton. I went one step further in amendment No. 41 by suggesting that any Department being investigated should not supply staff to the commission.

On Committee Stage I was powerfully influenced by the Minister's reply in two respects. There is a good case in terms of the expertise which has been established in looking at a complex issue to a certain point and that it would be a loss if this was not available to the commission. I was also impressed by the argument that one could establish distance between the structure of the Department under investigation and one's own position in it. I called a division on Committee Stage because I felt it was very important in terms of the public perception of the proceedings of the commission and in terms of protecting the staff involved in such Departments as might come under investigation.

Since Committee Stage I have been reading an interesting biography by Patrick Salmon of the Office of Public Works which could have been subtitled "How my life was ruined by an insensitive Assistant Secretary and a jolly Secretary General who allowed him to have his way". People will have to wait for my review. The point is that whether we like it or not there is a structure in Departments, which was borne out in what was said in the House when the Minister's predecessor claimed to give an account of what happened at the time of the Kennedy investigation. I would say, arbiter dictum, that of course things have changed. We are always told they have changed for the better. However, they have not changed that radically.

At the time of the Kennedy report an admirable civil servant was seconded to the committee and given the terrible burden of imprecision in relation to what he should do, of whether one was to keep a record of every event, etc. It is easy to be critical afterwards about what should have been kept. The instructions should have been explicit, but that was not the case. The correspondence which takes place and which is on the record of the House is interesting. It could be summarised as follows: "one of my men is working with this committee and has told me some things which are alarming". There is no reference to the appalling consequences of what is happening to children, but there is a reference to what will happen if it becomes public. In this circumstance the Secretary of one Department writes to the Secretary of another about the propriety, as they see it, of keeping the lid on the issue.

This is admittedly perhaps an archaic version of what happens in institutions imperfect in themselves, as we inherited them from the time of empire but now thoroughly reformed, and it begs the question as to why we should place the burden on a staff member, however talented and whose integrity we do not suspect for a second, of working on the commission while at the same time maintaining a distance from those to whom he or she will return. The easiest and best way in terms of public perception is to state that staff of Departments which will be robustly investigated should not supply staff to the commission. I have already acknowledged the downside of this, namely, that one loses an accumulated expertise and application. However, on balance in terms of what will be gained I am sticking to my amendment which is probably the most important I have tabled.

"Nobody shall be a judge in their own court" is a well known legal phrase. The commission will inquire into matters which relate to the manner in which the Department of Edu cation and Science managed the residential institutions for which it was responsible and the extent to which the Department of Health and Children did likewise. It is completely inappropriate, no matter how great the integrity of the individuals concerned – and I do not impugn any individual as having anything other than integrity – that officials who work in Departments which are under scrutiny by the commission should staff it. The idea of forming a commission to examine one's friends and colleagues with such a staffing arrangement is worthy of a Franz Kafka creation. It is inevitable that the commission will reach controversial conclusions on some issues.

I have the greatest faith in the integrity of Ms Justice Laffoy and her independence. It is important that those people who feel that they have been wronged by the State or by State institutions have full confidence in the mechanism that is put in place to inquire into the horrible events over the years and the suffering inflicted on young children who found themselves in residential care.

I listened with interest to the contributions of Deputies Bruton and Higgins. The two Departments referred to by them should not staff the commission. I would have no difficulty if it were staffed by any other Department, for example, the Department of the Environment and Local Government, provided that the civil servants who are seconded never held office in the Departments of Education and Science, Health and Children or Justice, Equality and Law Reform. It is preferable that the commission's staff comes from a Department the modus operandi of which over the years will not be under scrutiny by the commission.

I hope the Minister will realise the seriousness of this issue for those who survived abuse in our institutions. He must also realise that no matter what comfort he attempts to give by referring to the undoubted integrity of the individuals who will be seconded, those who suffered abuse feel that the State seriously and fundamentally let them down during their childhood. There is an understandable residue of suspicion and doubt in regard to the bona fides of the State in the context of the Government and its Departments examining and critically analysing the events that took place.

Ms Justice Laffoy has a huge job to do and she will be dependent on the substantial back-up that the civil servants seconded to her must provide. They should come from different Departments to those mentioned in the legislation. It is unfortunate that the degree of unease among those who are looking to the commission to relate the full story of what happened to them during their childhood is not understood by the Government or appreciated by the Minister. It is difficult for those of us who are fortunate enough not to have suffered such abuse to understand the degree of genuine suspicion as a consequence of the hurt that was suffered.

It is unlikely that the Minister will agree to the deletion of these sections. However, I ask him to examine the secondment of staff from other appropriate Government Departments or other areas of the public service rather than from the two Departments which will be under the greatest scrutiny before the Bill is taken in the Seanad. I also rule out seconding civil servants from the Department of Justice, Equality and Law Reform, which also had a remit to ensure that children put into care by the courts were properly protected.

We discussed this issue at great length on Committee Stage and we are virtually having a Committee Stage debate now as we discuss the same points again.

It is a serious issue.

That is fair enough. I appreciate how strongly the Deputies feel but, as I made clear on Committee Stage, the amendments should not be made. They have clear implications for the timescale within which the commission can begin its operations and its effectiveness and efficiency once it does so. The Deputies' concern relates to possible conflicts of interest because seconded staff belong to Departments which are under investigation. Such conflicts of interest do not arise. The staff concerned are professional administrators with no role in making any evaluations of evidence or reaching any conclusions.

Deputy Shatter suggested that no one should be a judge in their own court. Ms Justice Laffoy will preside over the commission and she is eminently happy with the staff who have been seconded. They have done an excellent job to date. Civil servants work in general Civil Service grades and transfer between Departments from time to time. Consequently, there would have to be a witch hunt across Departments. In addition, decentralisation has resulted in major changes in Departments with people transferring here and there. An inquiry would be needed and it is not necessary or relevant in the context of the commission. I stand over the civil servants who are doing excellent work for the commission.

The commission or its legal representative will conduct the examination of witnesses. The commission will weigh up the evidence, reach conclusions and draft its report. It is inconceivable that its members would allow themselves to be influenced in such matters by administrative staff. On the other hand, if the amendment denies the possibility of staff from any Government Department or public body working with the commission, it would be obliged to commence an extensive process searching for other suitably qualified staff and interviewing and selecting such staff. It is difficult to see how this could be done within any reasonable timescale.

I am satisfied that the potential for conflicts of interest is very remote and, in so far as it might exist, I am further satisfied that the commission will be in a position to prevent it. The damage done to it by these amendments would far outweigh any benefit which could be gained.

The Minister is misleading the House regarding the role of the staff of the commission. Under section 21 the staff will act as inquiry officers to perform functions of inquiry. They will conduct interviews with persons making allegations of abuse and take statements from them. They will be intimately involved in the evaluation of the evidence that is presented. They are not part of a typing pool, which will just type up what the commission might find in particular cases. These people will be intimately involved in the entire process and to represent their role as purely administrative is misleading. The Minister is completely wrong.

There is no suggestion in either amendment that he must go outside the Civil Service to establish panels of interviewees. I would be quite happy with the appointment of public servants from Departments other than those under investigation to carry out the sensitive work of the commission. I do not accept the Minister's view. If the commencement date is delayed by a little while, it will not be regarded as the end of the world by the survivors or those who might be accused. It would be better if this were done properly in order that any potential conflicts of interest are avoided, even if it requires a month to be devoted to appointing other persons to act as inquiry officers and carry out other important support work for the commission. I cannot understand the Minister's obstinacy on this issue.

The consent of the commission is required to take on any staff. I have every confidence in the commission.

Amendment put

Ahearn, Theresa.Allen, Bernard.Belton, Louis.Bradford, Paul.Broughan, Thomas.Bruton, Richard.Burke, Liam.Burke, Ulick.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Coveney, Simon.Creed, Michael.D'Arcy, Michael.De Rossa, Proinsias.Deasy, Austin.Deenihan, Jimmy.Enright, Thomas.Farrelly, John.Finucane, Michael.Fitzgerald, Frances.Flanagan, Charles.Gilmore, Éamon.Hayes, Brian.Higgins, Jim.Higgins, Joe.Higgins, Michael.Hogan, Philip.

Kenny, Enda.McCormack, Pádraic.McDowell, Derek.McGahon, Brendan.McGinley, Dinny.McGrath, Paul.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Moynihan-Cronin, Breeda.Naughten, Denis.Neville, Dan.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Owen, Nora.Penrose, William.Rabbitte, Pat.Reynolds, Gerard.Ring, Michael.Ryan, Seán.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Timmins, Billy.Upton, Mary.Wall, Jack.Yates, Ivan.

Níl

Ahern, Michael.Ahern, Noel.Andrews, David.Ardagh, Seán.Aylward, Liam.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Collins, Michael.

Cooper-Flynn, Beverley.Daly, Brendan.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dennehy, John.Doherty, Seán.Fahey, Frank.Fleming, Seán.Flood, Chris.Foley, Denis.Fox, Mildred.Gildea, Thomas. Hanafin, Mary.

Níl–continued

Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael.Lawlor, Liam.Lenihan, Brian.Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.McGuinness, John.Martin, Micheál.Moffatt, Thomas.Molloy, Robert.Moloney, John.

Moynihan, Donal.Moynihan, Michael.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.O'Hanlon, Rory.O'Keeffe, Batt.O'Kennedy, Michael.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Treacy, Noel.Wade, Eddie.Wallace, Dan.Wallace, Mary.Walsh, Joe.Woods, Michael.Wright, G. V.

Tellers: Tá, Deputies Rabbitte and Sheehan; Níl, Deputies S. Brennan and Power.
Amendment declared lost.
Debate adjourned.
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