Deputy Deenihan was in possession and he has 17 minutes left.
Residential Institutions Redress Bill, 2001: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
Deputy Deenihan said he would not be here this morning.
Deputy Deenihan was not able to make it this morning and his party would not provide a substitute.
If no other Member is offering to speak I call on the Minister for Education and Science to give his concluding address.
I thank the Deputies who made contributions to the debate on this very important legislation.
On a point of order, I wish to be clear on the procedure for the rest of the day. Do I take it the Minister has been called on to conclude on the Residential Institutions Redress Bill, 2001?
That is correct.
The division on the Bill is postponed until Tuesday next. Is that the procedure?
A Deputy
There is no one here to call for a division.
That is only if a division is called for. I do not know if anyone will call for one.
An amendment has been put down.
There will be a voice vote on the amendment.
This has been a very extensive debate during which Deputies have covered most of the key points involved. The Bill has been accepted in principle and that is as it should be. It is very valuable legislation and I am anxious to get it on the statute books as early as possible as we come to the end of the life of this Government. I am very anxious that a scheme is put in place before this Government leaves office.
In concluding the debate on this Bill I acknowledge the support for its principles from all sides of the House. There has been a clear sense in the debate that the abuse of children in institutions is business which has been left over from the past, which must now be put right in the interest of justice and fairness.
Many useful suggestions of amendments to the Bill have been made and I look forward to debating them in more detail on Committee Stage. There were suggestions with which I do not agree, but I assure Deputies that I will approach Committee Stage with a willingness to take on board, where practicable, proposals from all sides of the House. It is not possible in the time available to address all the issues, but they can be taken up on Committee Stage.
There was some objection to the language used in the Bill. Deputy Creed stated that the Bill represented a significant shift from the language of the Taoiseach's apology in 1999, in which, according to the Deputy, a tribunal was promised. I categorically state that the Taoiseach did not refer to the issue of compensation, much less promise a tribunal, at the time he made the apology to the survivors of abuse. Detailed consideration of compensation for abuse in childhood only arose following my appointment as Minister for Education and Science in January 2000. The Bill is the outcome of proposals which were brought to Cabinet late last year. There was a particular reference to the use of the word "resident" to refer to children who were effectively incarcerated in the institutions. I accept that certain language can seem less than understanding of circumstances, especially if it appears to diminish what for some was a very painful experience.
I am open to suggestions about the use of language in the Bill, but, as this House needs no reminding, in dealing with legislation precise language is desirable and necessary. It is necessary in technical terms to ensure that the legislation cannot be misunderstood subsequently. If we are to amend the Bill to accommodate particular phrases or terms, we must avoid sowing seeds of confusion and doubt about the range and intent of the Bill as enacted. Deputy Creed raised the issue of the waiver which a claimant would execute on acceptance of an award.
A number of Deputies raised the question of the waiver. There has been some confusion in this regard, which I would like to clarify. First, this Bill does not interfere with the right of a person who suffered abuse in childhood to take action in the High Court. Such a person can apply to the redress board and continue with legal action, or more likely, leave it in abeyance pending the outcome of the redress board process. Therefore, the person in question can either go separately to the High Court or go to the redress board and then, when he knows the outcome of that process, he can make a decision whether to proceed further with it or go to the High Court. If one is accepting the award, the normal procedure – a procedure applied in many other cases – is that a waiver applies at that stage.
It is only at the point that a claimant to the board actually accepts an award that the execution of a waiver is required. It is at the point where one signs up and says "Yes, I am taking the compensation offered" that one signs the waiver. The option to step out and go to the courts is available right up to that moment, if that is what is desired.
It is a very fair system. It lets one go the whole way. It lets one see what is being provided and then, from that point, one can make one's decision. It is very important that that is clearly understood because it is a very fair procedure. I do not think it is helpful if there is confusion because people begin to think it is intended to act against them.
One cannot participate in both systems – one has to go through one or the other. We are introducing this system as a simplified system, one that will not involve harassment of the person who is making the claim. It is just to establish the facts in a simple way and to establish that the victim has suffered. Then the compensation is worked out. It is a non-adversarial approach. If one goes to court, lawyers on both sides take the person apart, and each another. It is an adversarial system. That is how it operates in this country.
I went in the other direction to provide a simplified method of compensation. That is all that is involved. Nobody is trying to do anything else or cod anybody. I am too long in politics and have been involved in a number of similar matters in the past. For the vast majority of people, the system will be welcome. One will always find people who do not welcome it and they are the people we will hear from afterwards. However, I believe we are doing the correct thing.
The effect of the waiver will be to terminate any litigation outstanding and to prevent civil legal action being taken with regard to the same circumstances. The rationale is simple. The claim ant will receive compensation for injury and will not be entitled to receive compensation twice from the same source.
There has been particular confusion surrounding the effect of a waiver on criminal prosecutions. I want to make it absolutely clear that neither the redress board process nor any waiver signed by anyone will have any effect upon criminal proceedings or the powers of the Garda and prosecuting authorities to both investigate and prosecute those suspected of child abuse. The waiver has nothing to do with the criminal proceedings that may be taken by anyone – whether by the State when the DPP follows a case through, or by the victim of abuse, in which case he or she is fully free to do so. The waiver does not affect that. It is a very simple, practical arrangement. When the amount and nature of the compensation are determined, the victim can decide either to take that compensation or go to the courts. The claimant is completely free to do that. There is no question of anyone saying otherwise.
We know what the court process entails. We know all the evidence and proofs, data, etc., that are needed. It is a heavy system and difficult for a person to go through. What is proposed will provide a much simpler alternative.
The inclusion in the scheme of financial redress for people who, as children or young people, spent time in foster care, orthopaedic hospitals and Magdalen laundries was also urged in the House. I am considering these issues and would like to hear further debate on them. However, I urge Deputies against using this Bill, which is a proposal addressed to a particular set of circumstances, as a vehicle for dealing with every injustice and abuse committed on children and young people in the past. If we do that, I fear we will end up with a scheme that will achieve none of its objectives and will take a great deal longer to advance.
Deputies also raised the issue of including children in day schools in the scheme and put forward some interesting suggestions. I set out at some length in my opening speech why I consider day schools should not be included in this Bill. The reasons relate to the nature of day schools and institutions, the latter having had total control over the lives of the children, bearing in mind the responsibility of public agencies for the schools vis-à-vis their responsibilities for the institutions and the powers of those bodies as regards regulation of the schools and institutions. Comparison was made with England in this regard and legal authorities were cited from that jurisdiction.
It must be noted, however, that in this jurisdiction the schools are and have been privately owned. In England, the school at the centre of the case where a public authority was held liable for abuse was owned by the local authority, as are most schools in England. It would be a considerable stretch of the legal principle of vicarious liability if the mere fact that schools received public funds, taught a national curriculum and employed teachers with qualifications approved by the State, whose work was inspected by inspectors, could cause the State to be responsible and liable for abuse of which even parents appear to have been unaware. This is clearly an issue that we will debate further at some length on Committee Stage.
In this context, Deputy Enright referred to the case of Donal Dunne who received a custodial sentence for child abuse. The Deputy stated that the Department of Education at the time knew that Donal Dunne was abusing children in a school and took no action. It would be negligent of me if I did not correct the record and inform this House of the actual position.
In November 1998, Donal Dunne was convicted on 16 counts of indecent assault against six boys in a primary school between 1965 and 1969. Charges relating to the abuse of another boy in a different place in the early 1970s were taken into account. He received a two year sentence. The Department's involvement with the case began in 1982, 13 years after the last of the main offences occurred. In May 1982, an adult who, as a child, had been a victim of abuse by Donal Dunne wrote to the Department alleging that Mr. Dunne had abused children. The person concerned also had a meeting with an inspector of the Department. The handling of the letter of complaint by the Department in 1982 was well below what could have been expected and it was in respect of that that my predecessor, as Minister, rightly criticised the Department of that time.
The letter was not acted upon in any meaningful way by the Department. At the very least, it could have referred the letter to the Garda for inquiry. The effect of this was that Dunne continued to teach unchallenged as regards his abusive behaviour until his retirement in 1985. There was, however, no evidence at his trial that any of his pupils were abused by him during this period.
Without diminishing the inadequacy of the response of the Department in any way, there is no evidence that the Department's inaction contributed to the abuse of any child. The incidents in respect of which Mr. Dunne was convicted occurred long before the Department was aware of the allegations.
Deputy Creed raised the issue of funding of support groups for victims of abuse in childhood and had concerns that some groups had been discriminated against. From the outset, the Government has recognised the valuable role which support groups play. As their name suggests, they provide support to people who are, to one degree or another, traumatised by their experiences in residential care. The groups also have a valuable role in providing information to former residents of the institutions and in encouraging them to access the services now being made available. My Department has worked closely with a number of such groups both in Ireland and the UK. In the current year, my Department will provide funding of the order of £300,000 to support the activities of these groups. The funding in the main is channelled through the National Office for Victims of Abuse and in the UK, two outreach workers are funded who in turn provide support and funding to support groups.
The national office in Dublin is a serviced office both for victims of abuse and for support groups set up by my Department with the assistance of the Department of Health and Children and the health boards. The capital cost was almost £100,000 and the running costs amount to a further £100,000 this year. At present, the four main groups representing survivors of abuse use the services of this office and form a management committee.
One of the difficulties facing my Department in funding groups is that there is a tendency for groups to fragment and for new groups to form and reform. My Department in those circumstances has to have concerns about accountability for public moneys and for ensuring that the moneys are well spent for the purposes intended. It was decided some time ago, therefore, that funding would be provided only to those groups in respect of which the management committee of the national office recommended that funding should be made available. The committee is well acquainted with the operating environment for support groups, the needs of survivors of abuse and of the activities and capacity of support groups generally. In my view, this brings a reasonable level of objectivity and special knowledge to the decision to fund or not to fund any group. Those groups which have not received funding have not been recommended by the national committee. Deputy John Browne of Wexford referred to an office which has been put in place in Enniscorthy. He felt that the office should be supported and I will certainly look into that.
Turning to the issue of the fairness of procedures, the concerns expressed in the House relate to the fact that a person against whom an allegation has been made will not be provided with an opportunity to put his side of the case. As I stated in my opening speech, this is a scheme for ex gratia payments made on a no fault basis. This is the best approach to dealing with claims dating back 40 years or more. The focus of the scheme is on injury consistent with abuse, not on the facts of particular allegations. I understand the sense of anxiety which people who worked in the institutions have about the possible implications of an award that they too were engaged in abuse. On the other hand, exhaustive inquiry into each allegation is likely in a large number of cases to result in nothing more than two diametrically opposed statements – the claimant stating that abuse occurred and the alleged perpetrator stating that it did not. It is not satisfactory that in such a situation a person who can provide objective medical evidence of abuse should be denied an award. A process of inquiry will, in many cases, be inconclusive and defeat the objective of this Bill which is to provide a quick and effective solution to the issue of compensation for injuries consistent with abuse in childhood.
I and my Department are, however, exploring this issue further. I would like to find a way to address the concerns of people who may feel unfairly treated if not given an opportunity to defend themselves. I will also await with interest the proposals of Deputies on this matter when we come to Committee Stage.
There is a difficulty here as to whether to go for an adversarial system in which a person says they were abused by someone who says they did not abuse that person. One, therefore, gets into the full panoply of legal challenges on both sides and the full adversarial system. Some people have said that may be necessary but I do not think it is. As far as we are concerned, we want to ensure that it is enough for this compensation scheme that somebody can show they have suffered, and that will be tested medically and by psychologists.
Many religious feel upset because, in their case, they have given tremendous service over many years in very difficult circumstances. They do not want any taint of criticism or suspicion on them because of some individual who in the same place at the time may have carried out the abuses. It is very hard to get away from that. That applies to us, in this House, and to people in a variety of ways. Damage was done which was not discovered, and if it was discovered, it was not acted on. We are fulfilling the promise the Taoiseach made and we are going to remedy that situation to the best of our ability and in so far as we can within the systems and arrangements in place and with as little pain, trauma and suffering as possible being caused to the people who suffered abuses. That is the purpose of this Bill and why we are designing it in this way. This is not a legal battleground. We do not want a legal battleground; we want to help these people. I call on all those who feel the same way to support what we are doing because we are making amends for the wrongs of many years ago which, from a national point view, is the right thing to do.
The question of deferring the debate has been raised, and I would like to comment on proceeding with the Bill. Almost all the issues were raised and repeated by Deputies in the Second Stage debate. I noted them and have them in my own handwriting and in the notes taken by officials. We seem to come back to the same issues all the time. I welcome the number of Deputies who contributed to the debate and expressed their concerns and anxiety to see something done.
The last major issue on which I would like to comment is proceeding with this Bill in advance of the recommendations of the committee of experts set up to advise on amounts of awards. Much has been made of the fact that awards should be at High Court level and that the uncertainty caused by the fact the committee has not yet reported would be unfair to claimants. However, what appears to be ignored in that argument is that there is little in the way of reliable precedent as to what the High Court would award in cases like this. Referring to High Court awards, therefore, provides no certainty to claimants as to the level of their award. The regulations made on foot of the report of the expert group are likely to have the very useful effect that claimants will be aware in advance of making an application to the redress board of the level of award they are likely to receive. They will provide greater certainty than proceeding to the High Court.
It should also be borne in mind that the enactment of this Bill will not affect people's right to proceed with litigation in the High Court if they are not satisfied with the levels of awards set by regulation. It has been implied that if the Bill proceeds without the report of the expert group, victims of abuse will be somehow disadvantaged. They will not be. They may simply disregard the redress board as a forum for settling their claim.
In regard to accountability to this House, I repeat what I said in my opening speech, that both Houses of the Oireachtas will have an opportunity to annul any regulation with which they are unhappy. I do not, therefore, share Deputy Creed's view that this is an ineffective process. It is one which applies in a wide range of legislation. It is common to include in a Bill a provision whereby a schedule of payments can be made out by regulation. That regulation is laid before the House and if it is objected to within 21 sitting days it can be taken up in the House, and that applies in either House. I do not see a problem arising, although it has been raised as a problem. This will not affect the findings of the independent expert group. Rather than coming back and asking everybody around the House individually what they would do, we are setting up an independent professional body and have provided for that in the Bill.
We are anxious to get on with it as quickly as possible. I do not want to delay this Bill. I have been in politics for a long time and I have seen Bills delayed and not ever passed – we saw today what could happen to Dáil business.
This is a crucial and important Bill, the purpose of which is to deliver compensation. There has been nothing before this that offered compensation. Here we have a comprehensive approach to compensation. I want to progress that to Committee Stage when it will be discussed line by line and passed as legislation that backs up what these people have been seeking for years. There is counselling and we have an investigation under the Laffoy Commission which are both working.
There has been some argument about lawyers' fees. It was mentioned that someone received four different offers in that regard. There is always difficulty in coming to agreement with lawyers about fees. That is nothing new. It happens in parallel with everything else and the fees are eventually determined. The main thing is to ensure that the issue does not delay or prevent us from doing what we want to do. One of the political tactics adopted in this House is to agree to something in principle but to try to delay it for one reason or another. People in this House often suggest reasons for not pressing on too fast with legislation. I will press on as fast as I can. I will soon put legislation on disability before the House, and I will put it up to the Opposition to support it and get on with it. The Supreme Court has ruled that the House and the Administration should introduce legislation particularly in relation to disability. I will do that, not in a matter of years or months but in a matter of weeks. The process will require the assistance and the support of the Attorney General's office and of the office of the Parliamentary Counsel to the Government. We are getting that support as a priority in relation to disability. I am anxious to go ahead with this legislation. Some people do not agree with me, but I am used to that and there is nothing unusual about it. That is what politics is about. Without disagreement there would not be politics, just a bureaucracy. When I first studied public administration many years ago, one of the first things I learned – and I did not really understand it at the time – was that politics is about differences of opinion and that if there was no difference of opinion or disagreement it would just be a question of straightforward administration. The reason we have politicians is that people have different views. We should not, therefore, be surprised in politics when people say things about us. I am still in one piece after many years because, fortunately, what people say does not really do much harm ultimately.
It is important to get legislation through and not to take risks. With Christmas approaching some people want to delay on the basis that we will adjourn for Christmas and will not return until the end of January. However, soon after the return of the Dáil after Christmas, the Finance Bill must be dealt with and subsequently a very heavy programme. The people who suggest postponing dealing with these matters know very well that the programme for the remainder of this term, the longest term of any Government in the history of the State, is a heavy one. Consequently, I am not in favour of delaying the introduction of that legislation. I want to have this legislation passed to provide a means of compensating the people in question. That is what we set out to do and that is what we will do.
A number of Deputies raised the concern that residence in an industrial reformatory school leads to a criminal record. In principle, I see no basis for imposing liabilities on people who as children were incarcerated in an institution because their parents could not provide for them, if this is the effect of a court order in such a case. At the commencement of the debate I strongly criticised the characterisation of children as criminals merely because they were resident in the institutions. Before making any proposals in this area, however, I would like to have the advice of my colleagues, the Minister for Justice, Equality and Law Reform and the Attorney General. I will return to that issue again in Committee. I am very concerned about it. The last Deputy to speak was Deputy Jimmy Deenihan who raised that question. Other Deputies also raised it. I will look at it urgently in relation to Committee Stage and discuss it with my colleagues in the Department of Justice, Equality and Law Reform and with the Attorney General.
This is an issue which relates to our past. How we deal with that past in the present is an indication of the kind of society we have become. That abuse occurred in institutions and our society failed to detect it and come to the assistance of abused children. That has been acknowledged. We must now deal with the consequences fairly and without further delay. I thank Ms Justice Laffoy for the excellent work that she and her team are doing on the legislation we passed earlier. I will do all that is necessary to ensure the early enactment of this Bill. I look forward to the co-operation of the House in doing that.
Question, "That the words proposed to be deleted stand part of the main question", put and declared carried.
I declare the Bill read a Second Time in accordance with Standing Order 111(2).