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Dáil Éireann debate -
Tuesday, 18 Apr 2000

Vol. 518 No. 3

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

Amendment No. 41 falls as amendment No. 40 was defeated.

A Leas-Cheann Comhairle, can you clarify the position regarding amendment No. 41?

Amendment No. 40 was the last amendment discussed and was defeated. Amendment No. 41 cannot be moved because it is an alternative to amendment No. 40. As amendment No. 40 was defeated, amendment No. 41 cannot be moved.

A Leas-Cheann Comhairle, I find it hard to follow your reasoning.

The question put to the House in amendment No. 40 was, "That the words proposed to be deleted stand." As it was agreed by the House that those words stand, they cannot be amended. Therefore, amendment No. 41 falls.

A decision was taken by the House not to delete the wording. Amendment No. 41 proposes—

The decision taken by the House was that the words—

—an alternative wording.

Amendment No. 40, tabled by Deputy Richard Bruton, proposed to change the wording of the Bill. The amendment put to the House was, "That the words proposed to be deleted stand"; in other words, that the words in the Bill would stand. That was agreed by the House. Therefore, amendment No. 41 falls.

That is a strange way of doing business.

It is the way business has been done in this House, as far as I know, since the foundation of the State.

It is not very democratic.

That is not a matter to discuss on the floor of the House. The Deputy should go to the Ceann Comhairle's office to discuss the matter.

I will do that.

Amendment No. 41 not moved.

I move amendment No. 42:

In page 10, line 5, after "appropriate," to insert "having had regard to the desirability of holding such meetings in public,".

Amendment agreed to.

I move amendment No. 43:

In page 10, line 31, after "abuse" to insert "and make submissions to the Committee".

Amendment agreed to.

I move amendment No. 44:

In page 10, line 42, 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".

We debated this at length earlier. I do not propose to press the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 45:

In page 11, line 2, to delete "a report" and substitute "reports".

Amendment agreed to.

I move amendment No. 46:

In page 11, to delete lines 24 to 27 and substitute the following:

"(4) The Committee–

(a) shall, not more than one year after the establishment day, prepare and furnish to the Commission 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 and furnish to the Commission other such interim reports.”.

Amendment agreed to.

Amendments Nos. 48, 58 and 59 are cognate on amendment No. 47. Amendments Nos. 47, 48, 58 and 59 may be discussed together by agreement.

I move amendment No. 47:

In page 11, line 43, after "oath" to insert "or affirmation".

These amendments were dealt with in detail on Committee Stage. The Oaths Act, 1888, which allows an affirmation, only applies to proceedings. It is not clear if witnesses before the commission could benefit from it. Therefore, we believe these amendments are necessary.

I sought the advice of the parliamentary draftsman, as I promised I would, on this issue. I am assured the wording proposed by the Deputy is already incorporated into existing legislation. The Interpretation Act, 1937, provides that the word "oath", in the case of persons for the time being allowed by law to affirm instead of swearing, includes affirmation. Accordingly, I am advised this is not necessary.

I accept that.

Amendment, by leave, withdrawn.
Amendment No. 48 not moved.

I move amendment No. 49:

In page 13, to delete line 16 and substitute ", and make submissions, in confidence to the Committee,".

Amendment agreed to.

I move amendment No. 50:

In page 13, line 21, to delete "a report" and substitute "reports".

Amendment agreed to.

I move amendment No. 51:

In page 13, to delete lines 37 to 40 and substitute the following:

"(4) The Committee–

(a) shall, not more than one year after the establishment day, prepare and furnish to the Commission an interim report on such matters relating to the evidence and findings 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 and furnish to the Commission other such interim reports.”.

Amendment agreed to.

I move amendment No. 52:

In page 14, line 16, after "Committee" to insert "(including the legal representative of any such person)".

Has the Minister considered this amendment? Its purpose is to provide cover for the legal representatives of people appearing before the commission.

I have noted the amendment and I do not have any difficulties with it. However, I am advised there is no need for the amendment, as the protection of legal representatives is covered more generally under legal privilege. Accordingly, I am advised it is not necessary.

I will take the Minister's word on that.

Amendment, by leave, withdrawn.

I move amendment No. 53:

In page 14, line 51, after "Commission" to insert "and with groups representing those expected to appear before the Commission".

This amendment deals with the proposed scheme to be made by the Minister for the payment of expenses of witnesses appearing before the commission and those making their case to it. The amendment provides that the Minister would consult not just the commission but groups representing those expected to appear before the commission.

Considerable concern has been expressed, particularly by those who are appearing as survivors of child abuse, about whether they will be adequately supported in making their cases. Some of the concerns expressed have been about quite mundane matters, such as whether they would receive the cost of travel tickets in advance or would have to wait long periods before they were reimbursed. Such issues need to be resolved in the implementation of the scheme, which is why it would be useful to have consultation with those likely to appear before the commission.

There is also the wider issue of legal representation. I know the Minister is correctly trying to avoid the commission becoming extremely legalistic, as we have seen happen in some other cases. On the other hand, the legal representation proposed by the Minister is very flawed. The proposal is that individuals appearing before the commission as survivors of child abuse could claim legal expenses only if they could show they could not afford to pay their own legal expenses and, even then, only to a maximum figure of £800 for their whole appearance.

Someone taking a case to the investigation committee, who will be subjected to hostile cross-examination, deserves and would expect proper legal representation. That should not be capped arbitrarily in the way proposed here. No such cap will be applied to the legal expenses of accused persons appearing before the commission. Their expenses will be paid for by the State, which is as it should be. However, I do not see why discriminatory rules should be established for the presentation of cases by survivors of child abuse. If we want to avoid excessively legalistic procedures, that is a matter for Ms Justice Laffoy. We should not seek to arbitrarily impose a cost cap in the way that is being done in the draft scheme.

Consultation is important. The representatives of survivors of child abuse are entitled to have some form of representation throughout the whole procedure. The draft scheme provides that only individuals making their own specific cases can receive some legal representation, which is capped at £800. There will be no continuing legal representation for survivors which would follow their interests throughout the entire commission process and ensure they are adequately represented in the many public sessions.

That is the thinking behind the amendment. There are unresolved issues. It is very important that, when the Taoiseach has made a full apology, we should also be in full support of those who wish to bring their case before the commission, so that the truth of what occurred can be properly acknowledged and dealt with.

Are we dealing with amendment No. 53 alone or is it being taken with amendment No. 54?

We are dealing with amendment No. 53 on its own.

I support amendment No. 53. I will put a couple of questions to the Minister, the answers to which I hope will address the reasons I think this amendment is of extreme importance. I wish to make specific reference to a group of victims which may not attend because of the Bill's shortcomings.

Because of the speed at which all Stages of the Bill are proceeding through the House there is not an opportunity for adequate consultation and public debate on this matter. I understand Report and Final Stages will conclude today, and the Bill will go to the Seanad tomorrow and be completed there in a matter of days. Although it is important, this is not emergency legislation. It is vital that the important matters are teased out and debated adequately, which unfortunately the speed at which we are proceeding does not allow.

As far as this amendment is concerned, I want to speak about the victims of a teacher in my constituency who is now in prison, Mr. Donal Dunne, who taught in five schools, mostly in my constituency, from the 1940s to the 1990s. His many victims will not attend the commission unless the Minister takes certain action and is prepared to accept appropriate amendments, one of which we are now debating. This group must have continuous legal representation equal to that accorded to other parties because without such representation there is little role or function for these victims. They may be told by the Minister they will have an opportunity to tell their stories but they have already done that in court. It is important that the Minister would allow the legal representatives of the victims of Mr. Donal Dunne and others to have full access to all documentation and records, and that the commission's report will include reference to findings in individual cases. It is essential that victims receive that acknowledgement. My colleague, Deputy Richard Bruton, stated on Second Stage, and argued vociferously on Committee Stage, that without such individual findings these people would have no reason to attend and queried the benefit of such a commission unless there is a section in the report on individual findings. That can happen only if the commission's work is done where there are continuous representations on behalf of all persons expected to appear before it. This is fundamental to the Bill and it is why Deputy Bruton tabled the amendment. These are important issues not only for the victims involved in the case to which I referred but for the adequate and proper working of the commission. I hope that between now and the end of the debate the Minister will confirm that there will be a separate report with findings and recommendations specific to primary and secondary schools, where individual teachers, such as Mr. Donal Dunne, taught for many years.

Unfortunately the Minister's colleague and predecessor, the Minister for Health and Children, Deputy Martin, refused to go along with the concept of a separate report. I am not sure why the commission should not be given instructions to divide the report into sections, and that these sections would include the important section to which I referred.

I support Deputy Flanagan. The speed at which the Bill has been dealt with is a matter of concern for many of the groups involved which intend to appear before the com mission. While Members have access to records and the reports from the various Stages of the Bill, other people outside do not have the same kind of access. There is concern that interested groups and individuals have not had an opportunity to read through one Stage before the next Stage is taken. That was badly handled from the start in regard to this Bill. It is unfortunate that the needs and concerns of the various groups have been overlooked.

I also support the points made regarding the victims of Mr. Donal Dunne. The manner in which they have been treated by the Minister's predecessor and the Department is regrettable. It is regrettable that they may not be able to co-operate with, or become involved in, the work of the commission. There are serious issues arising from this case, not least the manner in which this case was dealt with.

It would not be appropriate to discuss the details of the case on this amendment.

It is pertinent to the provisions of the Bill.

It may be pertinent to the Bill but we are on a Report Stage amendment. I ask the Deputy to deal with the amendment before us.

I am talking about the manner in which complaints were dealt with in the Department of Education and Science, and those points were made strongly by my colleague, Deputy Higgins, and others on Committee Stage. The House's attention was drawn to the Bill's shortcomings and its failure to provide for a proper investigation of the manner in which complaints of abuse were handled by Departments. There is a pertinent point regarding the victims of Mr. Donal Dunne.

It does not make sense that the Minister refuses to ensure the final report will be in sections dealing with different institutions or individual cases. The commission's remit is extraordinarily wide. If it is to have any meaning or long-term effect on services for children and the way the systems are organised, it is essential that the final report is in different sections. It is vital, for the sake of order and effectiveness, that the commission approaches this on an institution by institution or case by case basis. For that reason, there should be sections or chapters dealing with different institutions or different cases, and dealing with the role of the Department of Education and Science regarding what happened in the primary and secondary school sectors. I ask the Minister to give serious consideration to these amendments.

The schemes I have published in respect of expenses are drafts only since the Bill requires consultation with the commission. I also have no objection in principle to consulting groups which represent witnesses, whether these witnesses are making allegations or are people against whom allegations are made. I and officials of my Department have already had such meetings and I or my officials will meet any group which requests it.

That said, I do not propose to accept this amendment since, given the wide range of groups and sub-groups concerned, the position is too unclear to provide a precise statutory provision. Again I undertake that I or officials of my Department will meet with groups who want to give their views on this or any aspect of the legislation.

Earlier we discussed at reasonable length the question of groups having representation and I am prepared to look at this issue. Accepting that the commission will be the investigating authority and will have all the powers and legal assistance necessary to investigate and follow-up any accusations, we recognise that there could be need for some representation for victims and that victims might like to come together in a group – I know some are working in groups – and we will examine this from the point of view of having a group or team representation.

Regarding the speed at which the legislation is being processed, it is very important to realise that it is a matter of urgency for those involved. I am being pressed to get on with processing the Bill. Also, the commission is anxious to get on with the statutory process. The Bill was published on 2 February and it has gone through the different Stages since then. It is now mid-April and the Bill has been discussed extensively on Committee Stage. Anyone who wanted to comment on Second Stage was free to do so, and there were extensive contributions at that time.

Regarding access to records, they are being made available and that process is already under way. There are 40,000 records which are being made available on the basis of full access for the purposes of the commission.

The issue of the report including references to findings in individual cases was raised. The report will include instances where the Department was remiss and abusers and institutions will be named. If it is found, for example, that X was abused by Y, it will be possible to say that Y was an abuser and it can be said separately that X was abused. However, to say X was abused by Y would be a matter for subsequent development, be it by way of a compensation tribunal or through the courts.

I will refer the case of Donal Dunne specifically to the commission together with all the departmental records. The benefit for the victims of Donal Dunne is that at last the responsibility of managerial and regulatory authorities can and will be determined.

People will be pleased that there can be findings of fact in relation to an indi vidual who appears as a witness and who is a survivor of abuse. Certainly, at this late stage it is news that the Minister is indicating the commission can make such findings. In earlier discussions when the Minister pointed to the provision in section 13(2)(c), namely, that the commission would not make findings in relation to particular instances of alleged abuse of children, I was left with the impression that this ruled out the possibility of making positive findings that an individual suffered abuse. That is a step forward and will make it more worthwhile for people to appear before the commission. Previously, while a person might be identified as an abuser, an abused person was not vindicated in terms of their individual experience. I presume that the commission will largely communicate in private with people who appear before it in this respect.

I also welcome the indication by the Minister that he is willing to meet representatives and agree to fund some form of group representation. I do not like the term "look at". One can look from a great distance, and the Minister should indicate he is willing to give some form of legal representation to groups representing survivors of child abuse. I know the Minister will have a problem in terms of which groups are represented and how this will be done, but I think that can be resolved. The Minister should be up front and say, before the House concludes its consideration of the Bill, that there will be some form of group representation which will provide continuity in terms of the interests of survivors.

In response to Deputies Flanagan and Shortall the Minister said he is being pressed to process the legislation. I am the Opposition spokesperson and have not received any suggestion that there is a need to rush the Bill from either side which will be represented, namely, survivors of institutions which provided care. I detect absolutely no pressure from outside the House in terms of processing the Bill. The pressure has come from the Department which wants to get the legislation through quickly. This may well be admirable – I can understand the enthusiasm – but like Deputies Shortall and Flanagan I have sympathy with those who, without legal advice, are seeking to track the legislation through the House. They have had the difficulty of reports from Committee Stage not being available when the debate on Report Stage began, and it is difficult for them to make submissions in response to Committee Stage to inform our discussions. I have sympathy with the case which has been made. I have not seen any huge pressure to get on with consideration of the Bill. People would rather it was dealt with slowly and correctly than quickly with the possibility of us living to regret it.

The debate has been useful, and although some of the amendments I considered important were rejected by the Minister, some useful progress has been made.

In case I gave a wrong impression I wish to clarify that victims will not be named. The abusers can be named. Victims were very anxious that they would not be named.

Regarding the time scale, the commission was promised on 11 May 1999. We had a report from the commission on a non-statutory basis which asked us to press on with the legislation. We are doing that so that the commission can begin its work. It is a reasonable amount of time. In addition, I and my Department have been asked to get on with the job and get the statutory commission up and running.

Victims have been waiting for decades, and now the legislation is being rushed through in a matter of weeks.

There is nothing rushed about consideration which takes two and a half months. Everybody has had an opportunity to speak on Second and Committee Stages. The Bill has gone through all the normal Stages and there is nothing rushed about this process.

We have a report from the commission on what it wants us to do. The Government accepted the report and said it would do exactly what the commission asked – we did not vary it. It is straightforward from this perspective. The Government and Opposition were at pains not to depart from what the commission requested other than to have clarification and to ensure that as far as possible everything was included.

On a point of order—

I remind the House that we are on Report Stage, not Committee Stage.

I have been provoked to ask this question by virtue of the Minister's comment that the legislation is not being rushed. Will he confirm that it is the Government's wish to complete Report Stage this afternoon, take Second Stage in the Seanad tomorrow, followed by Committee, Report and Final Stages on Thursday? If that is not rushing, I do not know what is.

The Whips agreed the arrangements for this afternoon. The Opposition Whips asked for a new arrangement because they wished to have another matter discussed later. There is no problem. These amendments reflect what Deputies sought earlier. I have already tabled a series of amendments to meet their requests following earlier discussions. They want to make other amendments which the parliamentary draftsman said were not necessary but there is nothing extraordinary about that.

If the Minister confirms that he will offer group representation throughout these proceedings, I will not press the amendment.

I am in discussions on the way that will be done. Obviously that involves the Attorney General but I would go along with it in principle.

Amendment, by leave, withdrawn.
Amendment No. 54 not moved.

Amendment No. 56 is related to amendment No. 55 and both may be discussed together by agreement.

I move amendment No. 55:

In page 15, line 16, after "discovery as" to insert ", in default of agreement between the Commission and the person,".

As I indicated on Committee Stage, I accept this amendment in principle. On the advice of the parliamentary draftsman, the amendment provides for this principle. I trust it meets Deputy Higgins's objectives.

Amendment agreed to.
Amendment No. 56 not moved.

I move amendment No. 57:

In page 15, lines 41 and 42, to delete ", or in any civil proceedings in a court or other tribunal".

The provisions for the establishment of the commission are different to those in legislation to establish tribunals. The evidence provided to a tribunal is not admissible in a criminal case but legislation does not provide that such evidence is not admissible in a civil case. Survivors of abuse are anxious that evidence unearthed by the commission should be admissible in civil cases. The Minister might say the accused might be concerned that it should be admissible but if a commission is set up to establish the facts evidence should at least be admissible in civil actions subsequently where the issue of damages will be resolved so that survivors will not have to seek to re-establish the evidence gathered by the commission but without its support. The only document they will have from the commission will be its final report but evidence which came to light or statements made will not be admissible.

The Revenue Commissioners have had to piece together evidence again in a well known case to pursue tax issues. The Revenue at least has the privilege of access to a huge range of documentation as of right and it can put together such a case again. I doubt that the same would apply to an individual, perhaps on a low income, who would seek to take a civil action subsequent to the conclusion of the commission. Why does the Government feel it necessary to debar the use of evidence, statements, findings and every other aspect of the commission's work that is available? Why can these not be resubmitted in a civil action?

Section 21 contains a number of provisions relating to the giving of evidence to the commission or to committees. A person will not be entitled to refuse to answer a question or hand over a document to the investigation committee on the ground that the answer or the document might incriminate him or her. This is a significant power for the committee. However, it must be recognised that in law a person has certain rights against self-incrimination. Accordingly, section 21(2) balances the power of the committee to receive statements and documents. This provides that a statement or admission made before the commission or a committee to a person taking evidence abroad, to an inquiry officer or in a document prepared for any of these bodies or people, will not be admissible against the person making it or his or her employer. Non-admissibility applies to criminal and civil matters.

Deputy Bruton's amendment proposes to remove the civil matters from this provision. These provisions are aimed at encouraging maximum co-operation with the commission's investigating functions and provide a balance between ensuring that the committee can receive the information it needs and the constitutional rights of others. If the amendment is made it would endanger such co-operation and disturb the balance which has been achieved. Consequently, I cannot accept the amendment. The Deputy is right that the report of the commission will be available and could be used. Any documentation provided to individuals, for instance, by my Department would be for their own use.

The Minister's explanation is far from convincing. Just because he says it disturbs the balance, is the House expected to believe that is so? It sounds like the Red Queen. It is up to the Legislature to strike the appropriate balance. It seems that is not the case for people who have summoned the courage and gone through the difficult experience of attending an investigative committee, undergoing cross-examination, having the facts discovered, in so far as the commission will be able to establish them, and listening to statements by others involved. They should at least have access to that material when seeking damages in court subsequently.

I do not understand why such a balance is inappropriately struck. As the Minister said, some people might not want to come forward in the knowledge that any statement could subsequently be used in civil actions but, on the other hand, we are trying to assist survivors of abuse to get to the truth and ensure a fair and reasonable outcome following their suffering. The balance should be slightly altered so that those who have had such experiences can use statements made to the commission as evidence in their subsequent civil actions. The Minister may say that agreement on a tribunal of compensation where negligence would not have to be proved in each case in an adversarial fashion might well get us over some of these problems. As the Minister will be the first to admit, the Government is not yet in a position to put forward proposals for such a procedure.

Many people will go through a very traumatic experience. Where there is physical abuse they will not be able to overcome the problems presented by the statute of limitations and this will further handicap them if they want to take a civil action. I am not a lawyer but I am not convinced by the Minister's argument that this amendment would disturb the balance of the Bill.

Is the amendment being pressed?

Does the Minister have a second opportunity to respond?

I understood the Deputy was replying. If a Deputy exceeds two minutes on his second contribution he is assumed to be replying.

Time flies.

The findings can be used in court and if there is a finding that a person is an abuser, that could be used subsequently. The main purpose is to get at the truth and to provide the healing forum.

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendments Nos. 58 and 59 not moved.

I move amendment No. 60:

In page 16, to delete lines 11 and 12 and substitute "as ‘inquiry officers') to perform the functions conferred on inquiry officers by this section.".

This is a technical amendment to correct a drafting error in the Bill.

Amendment agreed to.

I move amendment No. 61:

In page 18, line 8, after "may" to insert ", with the concurrence of the Minister for Justice, Equality and Law Reform,".

Amendment agreed to.

Amendments Nos. 62 and 63 are related and will be taken together by agreement.

I move amendment No. 62:

In page 18, line 20, after "section" to insert "does not apply to information protected by legal professional privilege but otherwise".

The commission should not be allowed to override legal privilege or all solicitors could be required to open their files. While it may get at the truth there would be a huge price to pay in terms of the erosion of human rights and the rule of law.

I am uneasy at the implications of these amendments because they appear to provide avenues for people to escape their obligations to the commission. It must be borne in mind that amendment No. 62 would ensure that the section would not apply to information protected by legal professional privilege. Under section 26, the release of information will be directed by the High Court. In the case of section 30, there is no reason people should be allowed to destroy records required by the commission merely because legal professional privilege attaches to them. I cannot accept the amendment.

Amendment, by leave, withdrawn.
Amendment No. 63 not moved.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank Deputies for the time they spent examining the Bill on both Committee and Report Stages.

I thank the Minister for the courteous manner in which he conducted the debate. He has acknowledged that there are elements which could be better. A huge amount of work was put into the Bill by the staff in his Department on all Stages. I also express my appreciation to the Ceann Comhairle and the offices of the House.

I wish to be associated with the remarks of appreciation for the officials for the work they put into the Bill. I welcome the undertakings given by the Minister today in the two respects we discussed. I hope most of the groups and individuals will participate fully in the commission. While it will be a difficult experience, we look forward to the final report, to ensuring that the ghosts of the past are dealt with in an open manner and that systems are put in place to ensure that abuse on such a scale cannot happen again in State institutions.

Question put and agreed to.