I have given the reasons for this measure. The compensation advisory committee reported to me recently and its report was published on 15 January. Among its recommendations was the desirability of making provision for an interim payment to be made where an applicant is getting on in years or is unwell. I set out the reasons for this before we adjourned. Deputy Creed asked the reason there was a limit on the interim payment.
Residential Institutions Redress Bill, 2001: Report Stage (Resumed) and Final Stage.
Debate resumed in Committee on amendment No. 29:
In page 8, between lines 27 and 28, to insert the following:
"(10) The Board may make an interim award where–
(a) it makes a preliminary decision in accordance with subsection (9) that the applicant is entitled to an award,
(b) it is satisfied that it is probable, having regard to all the circumstances, that an award that is equal to or greater than the amount of the interim award will be made in respect of the applicant, and
(c) it is of the opinion that having regard to the age or infirmity of an applicant the making of an interim award is appropriate in the circumstances, and such interim award shall not exceed €10,000 and it shall deduct the amount of such interim award from the award made in accordance with section 13.”.
– (Minister for Education and Science).
The point I made was that the compensation advisory committee has recommended a minimum payment of €50,000. If everybody is entitled to this minimum sum, why not have the interim payment fixed at this level? The payment can then be topped up with entitlements in excess of this figure, which are determined at a later stage.
This matter is dealt with on page 76 of the report of the compensation advisory committee – the Deputy referred to page 67 earlier. It states:
In the view of this Committee, there is a compelling case for making, as soon as practically possible after a positive preliminary decision, an interim payment to certain applicants, namely those over the age of 60 or those who are seriously ill.
We envisage that the making of a preliminary decision by the Board that redress is payable to a particular applicant should be sufficient to justify an immediate "interim" payment of €10,000 to that applicant.
This is the source of the figure I quoted earlier, which I remembered correctly. It is an immediate payment which, I believe, will be used in many cases. It will be subtracted from any subsequent award that is made. It is important to remember that little or no inquiry will have taken place at this very early stage, which is the reason this figure for an interim payment is proposed.
Amendment agreed to.
Bill reported with amendment.
I move amendment No. 30:
In page 9, to delete lines 1 to 3 and substitute the following:
"(e) shall have regard to the matters specified in section 7(1)(c) and any requirement of the Board under subsection (11).”.
Amendment agreed to.
I move amendment No. 31:
In page 9, line 7, after "applicant" to insert "or a relevant person".
Amendment agreed to.
I move amendment No. 32:
In page 9, line 8, after "applicant" to insert "or a relevant person".
Amendment agreed to.
I move amendment No. 33:
In page 9, line 18, to delete "section 7(1)(d)” and substitute “section 7(1)(c)”.
Amendment agreed to.
I move amendment No. 34:
In page 9, between lines 34 and 35, to insert the following:
"(8) The Board shall take such reasonable steps as are necessary, and in accordance with regulations made under this section, to inform a relevant person of an application under this Act in which the relevant person is referred to and where the Board so informs that relevant person–
(a) the Board shall invite that relevant person to provide it with any evidence in writing concerning such application as the relevant person considers appropriate,
(b) the Board may, on an application by a relevant person, allow the relevant person to give oral evidence to the Board in respect of the application,
(c) the relevant person may, in person or through a legal or other representative, and, with the consent of the Board, cross-examine the applicant and any person giving evidence on behalf of the applicant for the purpose of–
(i) correcting any mistake of fact or misstatement relating to or affecting the relevant person made in the application,
(ii) defending the relevant person in relation to any allegation or defamatory or untrue statement, made in the application, or
(iii) protecting and vindicating the personal and other rights of the relevant person,
and
(d) an applicant may, in person or through a legal or other representative, and, with the consent of the Board, cross-examine the relevant person and any person giving evidence on behalf of the relevant person,
and the Board shall consent under this subsection if it considers that, in the interests of justice, it is necessary or expedient to do so for any of the purposes so specified.
(9) A relevant person may request the Review Committee to review a refusal of the Board, under subsection (8), and the Review Committee may either confirm the decision of the Board or direct the Board to allow the relevant person to give oral evidence in the application concerned.
(10) Where there is a conflict between the evidence given by the applicant and the evidence given by a relevant person which cannot be resolved to the satisfaction of the Board, the Board shall request the advisers appointed under subsection (1) to prepare a report on the injuries referred to in section 10(4)(d) and section 10(11) shall apply to the making of such report.
(11) Where, having considered a report made pursuant to subsection (10), the Board shall make a preliminary decision under section 10(9) and the report prepared pursuant to subsection (10) shall be relied on for the purposes of section 10(11).
(12) The making of an award to an applicant, notwithstanding a conflict between the evidence given by the applicant and a relevant person, shall not constitute a finding of fact relating to fault or negligence on the part of the relevant person.
(13) The Minister may make regulations concerning the giving of evidence and the service of documents under this Act.".
Amendment agreed to.
I move amendment No. 35:
In page 9, line 41, after "section 10(11)” to insert “or, where appropriate, in section 11(11)”.
Amendment agreed to.
Amendment No. 37 is related to amendment No. 36 and amendment No. 52 is consequential on it, and the three amendments may be discussed together.
I move amendment No. 36:
In page 10, line 8, to delete "which have been incurred by the applicant" and substitute "incurred by the applicant in accordance with regulations made under section 17”.
These amendments relate to medical expenses. The Bill provides that the board may make awards for past expenses, which raises the issue of future expenses. In the majority of cases the applicants will have their medical expenses met free of charge and the making of an award will not affect this. However, in order to give some flexibility in this matter, I propose that the issue of medical expenses be made the subject of ministerial regulation when all facts and circumstances are researched.
Amendment agreed to.
I move amendment No. 37:
In page 10, line 9, to delete "received for the effects of" and substitute "for".
Amendment agreed to.
Amendments Nos. 38 and 39 not moved.
Amendment No. 77 is related to amendment No. 40, and both amendments may be discussed together by agreement.
I move amendment No. 40:
In page 10, line 26, after "made" to insert "an appropriate contribution relative to that public body or person's financial capacity to contribute".
In a nutshell the amendment relates to the deal done between the Minister and representatives of CORI about which we had an unsatisfactory meeting at the Committee on Education and Science. One of the issues raised during the Second Stage debate and the hearings at which we met representatives of religious institutions and vic tims was the establishment of an education trust. Under the deal the Minister concluded with CORI there is provision for, I believe, €12.7 million to establish this education trust. This is being rolled up as if it is an entitlement under the legislation. Quite simply, it is not, because the trust is not part and parcel of this legislation. The beneficiaries of the trust, which is being established at the behest of CORI, will be some but perhaps not all of those involved. They will not have a legal entitlement to access the fund. It is unfair to lead the public to believe that victims will have an automatic right to access the trust fund of €12.7 million, as the Minister knows that is not the case. This should not have been included in the Bill.
The Minister gave us a most unsatisfactory explanation of the property portfolio of the compensation package, especially in relation to properties that have been transferred, are about to be transferred or will be transferred in the next five years. We do not know if there will be independent valuation of the properties involved or whether they will be valued at today's prices or those in 2007. If the value five years hence is to be paid, there will be an incentive to delay the transfer to minimise the impact of property inflation. Religious institutions may choose to wait for prices to increase so they can minimise the amount of property that needs to be transferred to make up their contributions.
The contributions of religious orders should be commensurate with their culpability and their capacity to pay. My duty includes putting the deal under appropriate parliamentary scrutiny. The transaction, which is shrouded in absolute uncertainty, involves the delivery of certain properties to the State. The Minister's attempts to explain what is to be delivered have not done justice to CORI. My remarks should not be seen as a failure to appreciate the contribution made by religious institutions to education and social welfare over many years. I have said on many occasions, however, that the sins of the few must be faced collectively by the institutions. Neither the Minister nor the religious orders have adequately explained the detail of the deal that has been struck. The weakest aspect of the arrangement relates to the establishment of an education trust worth €12.7 million, which victims of abuse feel they are entitled to access. I would like the Minister to admit that victims will not have an automatic right to access the fund as, regrettably, it will be administered and established at arm's length from this legislation.
There is no doubt that the Minister's deal with CORI is a poor one for victims of abuse and other taxpayers. When we peel away the hype and spin put on the compensation fund by both CORI's public relations consultants and the Minister's press office, we see that a miserable contribution is to be made, especially given the culpability of some members of religious orders in past abuse.
The Department of Education and Science estimates that the final bill for compensation is likely to be about €500 million. The cash contribution of the religious orders to the bill will be about €25 million, about 5% of the total, which is pretty miserable. We have discussed the matter in the House on umpteen occasions, but the Minister has refused to estimate culpability or liability on the part of the religious orders. On Committee Stage I said that I thought this was a sweetheart deal and I am more convinced of that than ever now. The figure pencilled in for property transfers is spurious as a great deal of property was transferred with anything but compensation for the victims of abuse in mind. There is no clear record of what is happening.
The supposed briefing we were given by the Minister was entirely unsatisfactory as he did not answer questions posed by Deputies. Perhaps the Minister was holding on to the information or he was inadequately briefed, but it was an unsatisfactory exercise. I can only describe this section of the Bill as a con job. I wonder how much of the promised money the State and the taxpayer will ever see. I accept that the State has the majority responsibility for the abuse suffered by many people, but I do not accept that its culpability amounts to 95% of the total, working on the basis of the proposed 5% contribution by the religious orders. The Minister seems to accept such a high proportion of State blame on behalf of the taxpayer, thereby allowing the religious orders to escape lightly with a 5% contribution.
The establishment of a €12 million education fund is an aspect of the deal which has nothing to do with a direct cash contribution. Many Deputies spoke during the debate on this Bill about the need for such a fund, but we stressed that it should be established by the Minister for Education and Science. The State needs to take responsibility for providing educational opportunities to those who missed out in years gone by as a result of abuse, but the Minister has not brought forward any proposals. It is entirely unsatisfactory that religious orders will be able to control this fund, even if they have established it. It is wrong that they will decide who will be able to access the fund. It lets the Minister off the hook in terms of his obligation to provide second chance education for those concerned, but it also gives the religious orders the discretion to use the fund in a manner of their choice, which is unsatisfactory.
It was particularly mealy-mouthed of the religious orders to include another sum of €10 million for counselling, record retrieval and pastoral services. When the Minister was asked for details of this fund at our so-called briefing, he was incapable of providing any information on how it will be broken down between the three areas. Is it any wonder that those of us on this side of the House, the victims' groups and the public are cynical about the secretive deal that was done with the religious orders, given that the Minister is not prepared to come clean on its pre cise detail? I do not know if the money will ever see the light of day. It does not constitute a financial contribution to the compensation fund; it is merely a case of the religious institutions writing off amounts of money in the hope of being seen to have contributed a respectable amount of money. It is not difficult, however, to understand what the Minister and the religious orders are doing. It is especially disingenuous given the context in which this contribution was supposed to be made.
One of the primary objectives in seeking to make amends for past abuse must be not to compound it. The religious orders' smoke and mirrors approach to compensation and making donations smacks of a failure to meet this objective. The nature of the contributions they propose to make has been less than honest and it rubs salt into the wounds of those who have suffered abuse. As I have said, it is an unsatisfactory deal. It is a poor arrangement for victims of abuse and other taxpayers, who will have to pay for the decision to allow the religious orders avoid paying almost €100 million. At the end of the day taxpayers will have to make up that difference and that is not fair or right.
The Deputies raised a series of questions. Deputy Creed suggested that the education trust was not an entitlement under the legislation. The trust will be set up as an independent trust in the interests of those who were abused and their children and families. The trust will also have independent trustees.
That has nothing to do with the legislation.
We will have a say regarding the independence of the trustees.
That has nothing to do with the compensation.
The Deputy should allow the Minister to reply. She will have another opportunity to speak.
The education trust will be operated by independent trustees. We will have a say in the setting up of that trust. That is a fair and reasonable way in which to approach the matter.
The first meeting between the representatives of the State and the religious congregations to discuss the congregations' contribution to a compensation scheme for victims of abuse in childhood was held on 10 November 2000. The State was represented in these and subsequent discussions by senior officials of my Department, the Department of Finance and the Office of the Attorney General. The parties met on a further nine occasions – ten occasions in all.
However, the discussions ultimately reached an impasse. At that point I felt it was my duty as Minister, acting in the public interest, to attempt to resolve a situation which was arrived at after more than one year of negotiations. At that point there was an education trust, money for counselling and property, but the property went back over the past ten years. In that context I stated that it was reasonable to include property which was transferred to the State since the Taoiseach's statement of May 1999. I argued that this was a reasonable base from which to start, but not to go back ten years. This suggestion was eventually agreed.
I was anxious to get this legislation through and set up the compensation scheme. That has been my objective, but there are not many sitting days left. I did not want to leave the matter to the vagaries of what might happen at a later date. A subsequent Government might feel it faces a different situation and may not take the same view. A different Minister might be involved and the situation would be different. On the other hand, the process could roll on and be sorted out in due course.
I felt that I should make an effort to bring the matter to a conclusion at that stage. The Secretary General of the Department and I met the representatives of the congregations on two occasions and I put to the Government the set of proposals which emerged from that process.
It is quite offensive for Deputy Shortall to suggest that there is some sort of sweetheart deal. I rebut that suggestion which is offensive and untrue.
A sum of €25 million is a sweetheart deal.
I take it this is Deputy Shortall's second contribution. The Deputy is entitled to only two contributions.
No, it is an interjection.
Then I would ask the Deputy to allow the Minister to continue.
As a result of the discussions I proposed to the Government a package which amounted to €128 million. The target set by the negotiating team – other people who were dealing with the matter – was £100 million. In effect, we eventually reached a slightly higher figure in the total package. People argue about the content of the package, but that is the framework upon which it had been built during protracted negotiations. I took the matter from there and managed to increase the figure.
When discussions on this issue opened over a year ago, the congregations stated that they wished to make a meaningful contribution to any scheme of redress for people who spent large parts of their childhood in institutional care. In my view the terms now agreed in principle represent a reasonable outcome which will allow all relevant parts of society to make meaningful redress for past wrongs through which children were injured.
Deputy Shortall talks about €25 million in cash. The figure is €38 million, €12.7 million of which goes to the education trust.
The figure is €25 million in cash.
The property transfers total €80 million. That is a substantial figure which will go to the State. The Deputy is suggesting that this will not benefit people directly. Our objective is to ensure the State takes the overall package and responsibility, that it guarantees it for those who were abused and obtains a contribution from the religious orders. That is the way in which the matter has been approached.
The property will be transferred to the State which will then make the payments and cover the total costs of the package. There is another €10 million for counselling. The religious congregations have stated that they will continue their co-operation with the State and voluntary bodies regarding property transfers where they apply for services for people in need.
For its part, the Government will provide an indemnity. The precise form and extent of that indemnity is a matter for further detailed discussions between the officials and representatives of the congregations. Further detailed discussions will also be necessary to agree the issues regarding property transfers. However, I am confident they will be honoured in detail. The agreement is an agreement in principle, but if its contents are not honoured the indemnity does not apply to the religious. The two issues go hand in hand, as provided for in the legislation.
With the participation of the congregations, the redress scheme represents a significant part of the healing process for people who were damaged as a result of childhood experiences while in the care of the State and the congregations. The State and the congregations have apologised for the hurt caused. The Government has set up a commission to inquire into child abuse to which the congregations have repeatedly committed their full co-operation, and the Government and the congregations have put in place counselling services for people injured as a consequence of their time in care.
There has been some criticism of the agreement made with the congregations, particularly regarding the amount of the contributions. In considering the agreement, regard must be had for the present and past roles of the congregations in society and the role of the State in respect of destitute children. I have said the State bears a heavy burden of responsibility for the abuse of children. In saying so, I am not speaking of legal liability as might be established in a court of law in accordance with legal procedure. In such a forum, whether civil or criminal, the liability of the perpetrators of abuse and their employers cannot be avoided. However, the primary purpose of the redress scheme is to take this difficult issue of abuse out of the courts where many survivors could not get justice because of the rules of evidence and procedure. In a wider political and moral sense, society stands guilty of abandoning vulnerable children so that they were susceptible to abusers. That is our crime and our failure of duty, and it is high time we gave some comfort to those who suffered.
It would have been possible for me to refuse to agree with the congregations unless they committed the last cent of their resources to the redress scheme. However, what would have been gained by such an approach other than further protracted negotiations which would probably end in failure. In the meantime the pain of survivors would have continued without any prospect of relief. The contribution now committed by the congregations is meaningful. The agreement now reached provides the best possible opportunity of providing, not just compensation for survivors of abuse, but a complete settlement of this issue where all parties involved take their responsibilities seriously in the interests of long-term healing for abuse survivors and their families. What Deputy Shortall said about figures was not actually correct. The figure is estimated at €250 million. It is estimated that it could become anything between that and €500 million. The contribution, therefore, will be 50%, if the figure turns out to be €250 million.
It is 10%.
The Deputy has her own view. If the figure is €500 million, the contribution will be 25%. However, the important point is that the State is taking responsibility for what happened. It is ensuring those who were abused are given support and comfort. I cannot go into the reason the State should do this. There is plenty of evidence for its involvement. It is quite extraordinary that when the State turns around and states that it wants to make amends, people attack me.
The Minister is twisting things again.
I have said this from the beginning. As soon as I was involved, I said we had an administrative and moral responsibility towards the people concerned to which we must live up. We are living up to it and are happy to do so. That must be sorted out in the minds of Opposition Deputies first and foremost. After this we sought a contribution towards meeting the costs.
The records will show, in time, the extent to which the State was involved. Files were hidden away; reports came right up to the Secretary General of the day and were ignored or set aside. There is no doubt about the responsibility of the State in that regard. There are about 13 religious orders against which allegations have been made, but 18 are contributing towards this package, which is a matter for them. The reality is that a number of religious orders against whom no allegations have been made are contributing.
The choice we had to make was either to let the matter drift on until the summer and see what Government and Minister would come in and how people felt about it then, or to complete the work which I have been trying to complete. An alternative would have been to let the religious contribute nothing and the State provide the whole lot.
The Minister is twisting things again.
We came to an agreement which is fair and reasonable. It was an agreement in principle and we are currently filling in all the details at the highest level on both sides. I am confident that it will be honoured. The whole thing is a tragedy.
There is old maxim that states that when one is explaining one is losing. It is very apt in this context. The more the Minister goes on about the deal, the more gaps appear in it. One of its most glaring failures is that it does not guarantee access for victims to the envisaged education trust. I could argue with some conviction that the independence of the trust, at arm's length from the Department, is not a benefit as it removes it still further from the victims. The valuation put on record retrieval and counselling further undermines the merit of the argument while the part dealing with property is too vague. Ultimately, this is the fault of the Minister and his negotiations. There should be more detail. We should have actual properties, current valuations and transfer dates agreed. The more the Minister speaks of the deal, the more it emerges as unsatisfactory.
A substantial amount of the figure included for property has been transferred over the last three years. It is only right that religious orders, which in many cases are sitting on very valuable properties due to rising property values and will make substantial gains when they sell them, make some contribution towards the people concerned. This can be done by providing land for social housing as happened in the past. However, it happened without any reference to compensation for abuse victims. It happened because it was only right that religious orders should make that contribution. To include it now is being economical with the truth, to say the least.
The Minister was unable to provide any information about properties to be transferred in the future. Yesterday evening he was also unprepared to answer questions in an up-front manner. He continues to deal with Members in this fashion. I have had to use the Freedom of Information Act, 1997, to obtain information from his Department about what is going on between Church and State. When all the window-dressing is stripped away, the religious orders are contributing 10%, at best, to the compensation fund. It is more likely to be 5% and could even be a smaller percentage. This is a bad deal for victims and a very bad deal for the taxpayer. It is only a matter of time until this dawns on people.
On Second and Committee Stages many Deputies expressed concern about children who had been committed to the institutions for reasons which had nothing to do with offences and were given a criminal record.
There is an amendment to deal with that matter – amendment No. 99.
Will it serve to revoke these criminal records?
Yes.
If it does, I am happy with it. I thank the Minister.
That is part of the problem. There is a lot of unhappiness regarding that amendment. Amendment No. 99 which inserts a new section 32 states: "For the avoidance of doubt, a person who was detained in an industrial school pursuant to the Children Act, 1908 . . ." Some people are unhappy that the definition is so confined. I have had discussions with them about this and they are unhappy that they have not had the opportunity to tease it out further. Part of the problem is that there is a guillotine. This is one of the amendments that I have been asked to go into in detail and we will not have the opportunity of doing so now.
I mentioned floodgates today. The Minister can go into all the theory he likes about in loco parentis and so on, but he should remember that if there was even one wronged person who was under the care of the Department of Education and Science in an ordinary national school, though he or she was only there from 9 a.m. until 3 p.m., and that person is deprived of the right to compensation for his or her pain and suffering, the Bill is flawed. If only one individual is denied, the Bill is flawed. One person is being excluded for fear that a few more might get in. To base law on that alone is wrong and it is wrong that we are bringing in a guillotine on this Bill.
As it is now 5 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Education and Science and not disposed of are hereby made to the Bill, Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.
I thank the Deputies for putting in a great deal of time and effort on this complex, difficult and sensitive Bill. Our purpose is to provide redress and compensation for the survivors and those who were abused in residential institutions. I recognise the work being done in parallel by the Laffoy Commission and thank the Deputies for their contributions.
I thank the Minister for his endeavours in this regard. It is, undoubtedly, a difficult Bill. It deals with a difficult period. I regret that I am not satisfied the Bill is as comprehensive as it should be. We have moved from the original concept of a tribunal of compensation to a redress board. In terms of amendments brought forward today which spoke of findings of fact, there is a danger that this might unravel on a constitutional basis. The Bill's real failing is in terms of the exclusion of day pupils. That we have agreed to compensate some students in special schools but not others may well prove to be our undoing. I thank the Minister. I also thank the officials in his Department for their courtesy and assistance with regard to inquiries and briefings.
I thank the Minister and the officials in his Department for the work done on this complex Bill. It was difficult to come up with legislation in this area. I thank the Minister for taking on board several of the amendments proposed by the Opposition on Committee Stage. We appreciate that. I am bitterly disappointed the Minister did not go as far as including day pupils and we will regret that in the future. We are leaving the legislation open to legal challenge because of that and that is regrettable.