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Dáil Éireann debate -
Wednesday, 20 Feb 2002

Vol. 549 No. 1

Order of Business. - Residential Institutions Redress Bill, 2001: Report Stage.

Amendment No. 1 is consequential on amendment No. 8. Amendments Nos. 8 and 101 are cognate while amendment No. 102 is an alternative to amendment No. 101. Amendments Nos. 1, 8, 101 and 102 may, therefore, be discussed together.

I move amendment No. 1:

In page 3, lines 11 and 12, to delete "RESIDENTIAL INSTITUTIONS" and substitute "VICTIMS OF ABUSE".

During the Second Stage debate the question was raised of extending the scope of the Bill to deal with the abuse that took place outside the residential institutions. I said during that debate that the Bill deals with abuse in industrial schools, reformatories, orphanages and similar kinds of institutions. This is an issue which was brought graphically to light by publications, documentaries and the accounts of survivors in recent years. The purpose of the Bill is to deal with the abuse of children that occurred while the State was acting to a significant degree in loco parentis, where children had been removed by the State from their parents and placed out of their protection. I am extending its remit to cover some of the situations which the two Deputies opposite mentioned on earlier Stages. I am opposed to the amendment.

Will the Minister clarify for the House the standing, in the context of the legislation and his amendments thereof, of psychiatric hospitals, orthopaedic hospitals and so on? What is the standing of the women of the Magdalen laundries? May I take it from his reply that he is absolutely set against including, as entitled to redress, victims abused in day schools? When I raised this point on Committee Stage I suggested to the Minister that, as a fallback position, he might consider introducing to the legislation an entitlement to benefit those who have proven that they were victims of abuse through the courts but have not received any redress. I also men tioned previously the Hesley Hall case in the United Kingdom and the concept of vicarious liability. It is almost inevitable that the State's legal responsibility in cases where abuse took place in day schools will some day be proven in the courts. The State had a de facto supervisory role, as it still does in primary and post-primary schools. It is effectively the paymaster of staff in primary and post-primary schools.

If we are to make the best possible attempt to give real meaning to the Taoiseach's apology to victims of abuse, we should be open to including as many as possible of those victims under the terms of the legislation. I ask the Minister to consider day pupils and clarify the case of the women of the Magdalen laundries, the people who in many respects introduced this issue. When the story was uncovered there was a domino effect. The Taoiseach's apology and this legislation all grew out of the story of the women of the Magdalen laundries. I ask the Minister to consider the matter.

It would be helpful if the Minister were to clarify the amendments he circulated last night, although I welcome the extension of the terms of the Bill to other categories of survivors. It is rather unfortunate that he did not go so far as to include those people who suffered abuse in day schools or those cases in which the perpetrators have been convicted and have served or are serving sentences.

To return to the Title of the Bill, the Minister has decided to oppose the suggestion that we use the term "victims of abuse" in relation to residential institutions. One of the additional categories included by him under amendment No. 9 is pupils in special schools. While this is to be welcomed, we must bear in mind that special schools catered for day pupils and boarders. Will the Minister assure us that the Bill will actually include those day pupils? A number of those suffered abuse in the same way as residents or boarders. It would be helpful if the Minister clarified that.

The Deputy is correct. Amendments Nos. 3 and 9 deal substantively with this issue and I will deal with those matters through my amendments and will discuss them at that stage. In relation to the question, the Bill is founded and based on the residential principle. The amendments suggest changing the Title by deleting "Residential Institutions" and substituting "Victims of Abuse". That would be a fundamental change and would have implications for all parts of the Bill. The Title is fundamental to the Government decision and orientation of the Bill.

What about the special schools?

It would apply where they are residential.

It is important we get clarification on this. For instance, if we had two children who were in the same class in a special school and both were abused only the child resident in the school would be entitled to apply for compensation. The other would be excluded on the basis of not boarding in the school. That is an intolerable situation.

Let us get some order. The Deputy is entitled to a second slot of two minutes. The Minister may only speak for two minutes on this and the Deputy has taken up some of his time. He may not come back again as he has only two slots whereas the mover has three.

It is mainly to do with the principle of in loco parentis.

Acting Chairman

I take that as the Minister's second intervention.

I believe the Minister is making a mistake in not removing the word residential from the Bill. The Bill should cover people who have suffered at the hands of abusers and the Minister's amendment in regard to other categories of survivors is not sufficiently specific. The main complaints I have heard relate to residents but there is still a considerable number of other victims of serious sexual abuse, who suffered at the hands of people now convicted of serious sexual offences, and their pain and trauma is still with them and extends to their spouses and families.

It is hard to believe the wrong done in those cases. When they complained as children to their parents and complaints were made to school authorities and politicians of the time all that happened was that the abuser was moved from one school to another where the abuse was repeated and the cycle continued. I put it bluntly to the Minister that although their physical pain and suffering may not have been as bad as that suffered by haemophiliacs their mental pain and trauma has had a devastating effect. Even as grown adults some are moved to tears when speaking of it. They had hoped for some redress but the Government is saying no.

The Minister is afraid he will open floodgates. That will not happen. Ministers have been criticised in the past for holding too firm a line. The Minister is holding a firm line and holding the gates shut against people who already had the gates shut against them when they looked for fair play and tried to have the abuser removed. Their voices were not heeded then either. Unless the Ministers of the time were blind, deaf and dumb they must have understood what was going on. It was reported by teachers and inspectors but met a ministerial wall of silence. It is time that wall was broken down and that those who suffered in the past are given fair play. The Minister should ensure that justice, fair play and compassion are shown to those who were abused and that they are given some redress.

This fear of opening up redress to day schools goes to the heart of one of the fundamental difficulties that we have with the Bill. That fear is a red herring and there is a way, if the Minister wants to consider the issue, to limit the State's liability. The State is already a defendant in many of the cases taken under the Statute of Limitations extension which was granted to victims of abuse so that they could re-enter the court system. Compensation paid out under the redress scheme is designed to avoid the adversarial nature of the court process and the trauma associated with it. Where victims have taken court cases the State will have to pay if there is culpability so why not extend the scope of this Bill to those who have already lodged claims before the court? If they could win their case in court they could equally convince the redress board of the merits of their case. We would save legal fees and it would be less traumatic for the victims.

The other argument advanced by the Minister is that in residential institutions the State was acting in loco parentis. The logic appears to be that had the victims been in the care of their parents then their parents would have intervened. That is a simplistic approach which does not take cognisance of the reality in Ireland at the time the abuse was perpetrated. The reality is that until recent times a child making an allegation of sexual misconduct or abuse against a teacher was more likely to be punished for making the allegation than to have the allegation investigated. That was the culture of the time and it is unfair to assume in hindsight that because children were in their parents' care they were protected. There was a climate of dominance of the educational establishment prevailing at the time.

It is also an accepted fact that victims of sexual abuse do not report the abuse at the time of its happening. That is partly because of the dominion exercised over them by their abusers which is the rationale as to why the Statute of Limitations was extended. The Minister's mind seems closed to that reality. At that time too corporal punishment was the norm and there was a double standard in regard to physical abuse but there was never a grey area about the rights and wrongs of sexual abuse of children in schools.

Because many of these people are before the courts and the State may have to face up to liability, because we could limit the remit of the board to those day pupils who suffered sexual abuse and because it would not open up the floodgates, which would concern any Government in terms of expense, we have a moral obligation to put in place the most effective redress scheme for victims. We have a moral obligation to put in place the most effective redress scheme for victims. To differentiate between two victims because one was in a day school and one was not is unfair. The point made by Deputy Shortall about special schools is also relevant. We cannot differentiate between two students who were abused in a special school where one was collected by his parents in the evenings and the other was not. There is a strong legal and moral argument to at least include day-pupils who were victims of sexual abuse because, under the Statute of Limitations, the State will be exposed to liability in the courts in any case.

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

Acting Chairman

Amendment No. 2 in the name of Deputy Creed arises out of Committee proceedings. Amendment No. 2 is consequential on amendments Nos. 39, 43, 44, 45, 54 to 67, 69 to 72, 75, 84 and 86 to 90. Amendments Nos. 92 and 96 are cognate. Amendments Nos. 44, 45 and 74 are related. Amendments Nos. 2, 39, 43, 44, 45, 54 to 67, 69 to 72, 74, 75, 84, 86 to 90, 92 and 96 may be taken together, by agreement.

I move amendment No. 2:

In page 3, lines 14 and 15, to delete "RESIDENTIAL INSTITUTIONS REVIEW COMMITTEE" and substitute "HIGH COURT".

The Bill provides for an appeal by the claimant against an award to a review committee. The appeal will be a full re-examination of the claim. I do not agree that, given the nature of the compensation scheme now proposed, it would be appropriate to involve the High Court in reviews of awards as these amendments propose. One of the primary objectives of the scheme is to remove the issue of compensation from the formality and time-consuming procedures of the higher courts. As pointed out on Second Stage, involvement of a court in this scheme would blur the distinction between formal court proceedings and the compensation scheme and significantly dilute one of the main benefits of a compensation scheme, that is an expeditious resolution of claims.

The scheme as it stands gives survivors of abuse who experienced very significant delays and uncertainties in litigation a quick and effective alternative. This will have none of the formal panoply of a court. Further, the level of inquiry by it into the facts of his or her history will be considerably less onerous as will his or her cross-examination. In the circumstances, having this scheme stand alone outside the normal litigation process is the appropriate approach to take. Where an applicant is unhappy with the level of an award, or where an award is not made, the option of an action in the courts remains open to him or her. Thus, a claimant can access the redress scheme up to the point where an award is determined, abandon it at that point, and pursue his or her case through the High Court.

The review committee is an internal appeals system and will be chaired by senior legal counsel with a number of other eminent people. I cannot accept the amendment.

There is an inconsistency in the Minister's approach. He is forcing one category of victims – I do not differentiate between victims of day-schools and residential victims – to pursue cases through the courts because of the restrictive application of this Bill to those who were in residential institutions. At the same time he is denying the category of victims dealt with under the legislation the safety net of an appeal mechanism to the High Court if those victims are dissatisfied with the manner in which their claim for redress is dealt with by the redress board. That is a fundamental inconsistency. How can we slam the door shut on one category of victims that is told to go to the courts while attempting through this legislation to ring-fence another category of victims so they will not have access to the courts? This matter will either be dealt with through the courts or in a non-adversarial way. However, victims who are dissatisfied with the non-adversarial approach should be given a right of appeal to the High Court. That is the kind of safety net that will ensure the redress board being established under the legislation will deal fairly with the claims before it. I urge the Minister to reconsider his approach on this matter.

I was taken aback by the Minister's reply. He is more or less saying that it is not appropriate to have the High Court involved, that there is too much formality with regard to the High Court and that the court is time-consuming. The Minister should remember, when he speaks of the courts being time-consuming, that people have suffered pain and trauma for up to 25 years, as have their families. The Minister should not think that saving them half a day in the High Court is important when that half-day will give them an opportunity to explain to a High Court judge in open court the pain and hurt they suffered. The Minister, by his refusal, is attempting to deny them their right to explain in public court what they suffered. It is terribly wrong that the Minister even mentions the formality and time-consuming nature of the High Court as obstacles.

The Minister also spoke of the blurring of the distinction between the High Court and the tribunal, and that there is to be a quick and effective way of dealing with these cases. The people involved are not looking for a conveyor belt system but for fair play, justice and a right to articulate their feelings. I am amazed that the Minister is attempting to cut off their right to appeal to the High Court at this time.

In the past, there has been an attitude in Government which sought to get rid of juries because they gave excessive awards. The only groups who had the courage of their convictions and stood up against that were the trade union movement and the Law Society – unlikely bedfellows, but at least the trade union movement was anxious to ensure that those who suffer injury or death at work, or their families, have recourse to the courts where juries were giving awards. Juries have been abolished in this area and these cases are now decided by judges. It looks now as if the Government is to take away the rights of victims by moving away from that system. The courts were established under the Constitution and we should not lightly whittle away their rights. The Minister is denying the right to appeal to the High Court.

I have received many letters and many people have come to me, some of whom were anxious that their names would be mentioned publicly. I have decided not to mention names at this point because if one mentions one or two and leaves out others, it would not be wise. This Bill has the potential to help provide redress for some of what took place in the not too distant past, but what the Minister is leaving out is very important to many of those people. If people are not happy with the award made or if they are not happy and get no award, they should have the right to appeal to the High Court. The courts of justice rather than a tribunal would have been a better way to deal with this. However, there will be a tribunal, but if people are not happy they should have the right to go to the High Court.

Anyone has the right to go to the High Court at any time. The only reason I am bringing this in and taking on all that has gone through the House up to this stage is that we want to give people a simpler, more readily available method of pursuing their claims and getting compensation. There is no question but that this will be a much simpler process and it has been very widely welcomed. Indeed, the Deputies opposite have spoken again and again about the large numbers, the costs and so on but one will find that people will get satisfaction there.

Another point I would like to make very clear is that in parallel, a report was done by the expert committee entitled, Towards Redress and Recovery. The decision to which the compensation advisory committee came was to compensate at the level of the High Court, not to drop to the level to which they dropped in New Zealand, Australia, Canada and elsewhere and to give payments consistent with those awarded at High Court level. It pitched the whole compensation process at that level. That is in the report. We discussed this earlier and it has been well ventilated.

To say there is no right of appeal in any event is totally wrong. There is the right of appeal to the High Court. When a person gets their award, they can consider it and decide whether they think it is adequate. At that stage they can decide to go to the High Court. When one comes to look at this system, one will see it is an easier one. The level and degree of proof required will be much simpler as will the harassment for the people going before it. Therefore, I think most people will be happy to work through the compensation body. There is a right of appeal both before and after the event.

Why not accept the amendment whereby the words "RESIDENTIAL INSTITUTIONS REVIEW COMMITTEE" would be deleted and substituted with the words "HIGH COURT"? Deputy Creed's amendment is very reasonable and fair and would be much better. In regard to a simpler process, a certain level of care must be taken in presenting High Court cases and that is as it should be. The Minister has said he is opting for a simpler, expeditious, less formal and less time consuming process but this amendment is very reasonable. The words "RESIDENTIAL INSTITUTIONS REVIEW COMMITTEE" should be deleted and substituted with the words "HIGH COURT" as that would meet our reasonable request in this instance.

People will have the right to take their case to the High Court if they wish to do that.

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

Acting Chairman

Amendment No. 3, in the name of the Minister, arises out of Committee proceedings. Amendment No. 3 is consequential on amendment No. 9 and amendments Nos. 7 and 103 are related. Amendments Nos. 3, 7, 9 and 103 to be taken together. Is that agreed? Agreed.

I move amendment No. 3:

In page 4, line 18, after "State," to insert "a Minister of Government, a Minister of State,".

The purpose of amendment No. 3 is to clarify that Ministers and Ministers of State along with their Departments are covered by the definition of public body. The same applies to local authorities. I consider that this is, in effect, a technical matter.

Amendment No. 7 extends the scope of the redress scheme to those who, as children, were sent to Magdalen Laundries from an institution already covered by the scheme, such as an industrial school, and were victims of abuse while children in the laundry. This extension is within the original intention of the Bill. I am not proposing that victims of abuse who were adults when that abuse took place should be covered by this scheme. This Bill cannot hope to address all the wrongs which occurred. It is, in essence, a measure to right the wrongs done to children where the State was in loco parentis and failed in its duty to protect them. In saying this, I must emphasise that I in no way wish to dismiss the fact that abuse of adults could and did occur in Magdalen Laundries or that the abuse was an appalling breach of trust or, indeed, that the vic tims of that abuse suffered and continue to suffer greatly.

In amendment No. 9, I propose to extend the scope of the scheme to include those who as children suffered abuse in special schools, orthopaedic hospitals and other medical institutions. I was asked on Committee Stage to consider those who were abused in institutions other than those initially envisaged. I have included a number of new institutions in an amendment to the Schedule, including bodies such as the schools for the deaf and the visually impaired, schools for those with an intellectual disability and orthopaedic hospitals.

On Committee Stage, Deputy Coveney raised the question of boarding and day schools. I have considered this series of extensions very carefully and remain convinced that to allow applications in relation to schools where the State was not in loco parentis nor where it had the same regulatory and supervisory relationship with the State would be to stretch the scheme beyond any reasonable interpretation of its principles. Accordingly, I have not proposed that primary or post-primary schools, other than the residential institutions outlined in section 4 and in the Schedule, be covered. Calls were also made on behalf of those who, as children, were fostered and suffered abuse. There is no substantial evidence of widespread abuse in foster homes and, in the circumstances, I do not propose to extend the scheme to this category.

Again I ask the Minister to clarify a point which he has not clarified so far. He is seeking to make a distinction between day pupils and boarders in special schools. That distinction is completely erroneous. If two children in class were abused and one was a day pupil and the other a boarder and if they were abused during school time, what is the basis for distinguishing between those two victims? It is a completely unsustainable position to adopt, namely for the Minister to discriminate against a victim purely on the grounds of whether a person was a boarder or a day pupil.

Will the Minister explain the basis for that distinction?

The points raised by Deputy Shortall are similar to the points we raised earlier in terms of the title of the Bill and its application to non-residential institutions. The danger is that this legislation will be challenged in the courts either by somebody who has not been given an opportunity to defend his or her good name against an allegation, as has happened in other jurisdictions, or on the basis of the points specifically under consideration here.

Under the terms of this legislation, a victim of abuse in a special school who was a resident in that school will be entitled to compensation, but somebody who suffered the same abuse but who was not a resident in the school will not be entitled to compensation. I would ask the Mini ster to consider a point I made earlier, that his in loco parentis argument is not really relevant. Another point is that these special schools may have been schools for persons with physical, speech, hearing or visual impairment and, in addition to the reluctance of an abused person to tell their story because of the dominion held over them by the person who abused them, there may also have been a physical difficulty in communicating to their parents the abuse that was being perpetrated on them as day pupils. It is invidious to draw a distinction in terms of this legislation between residential and day pupils, particularly in the context of special schools. Abuse is abuse. We are not fireproofing this legislation against legal challenge and that will be its failing. It would be regrettable if the compensation process were to unravel because of our failure to amend the legislation. It is not sustainable to say to one pupil who sat in a classroom and was abused that he is entitled to compensation and to another that he is not. The in loco parentis argument simply does not stand up as it fails to take account of an abuser's dominion over the victim.

It must also be considered that under the extension of the Statute of Limitations, many of these cases may already be before the courts. If the Minister limits entitlement of day pupils to those who suffered sexual abuse and those who have already availed of the extended Statute of Limitations and are before the courts, he cannot then argue that the floodgates will open. There is a defined number of people before the courts. In any event, the report of the advisory committee on compensation, to which the Minister referred earlier, has made the point that the compensation levels to be paid by the redress board will be commensurate with High Court awards, and that these day pupils, by virtue of the Statute of Limitations, have already lodged their cases with the High Court and are waiting to see whether they are to be forced down that road or can be compensated here. The net point is that the State will end up paying in any event, either before the courts or under the terms of the Residential Institutions Redress Bill. Why not, therefore, remove the adversarial costs of court proceedings and enable those day pupils to avail of the terms of the redress legislation? It is illogical to do otherwise.

I support my colleague who quite rightly speaks of the contrasting situation of residents and day pupils in institutions. I want to make a specific point which relates to my constituency and to impress upon the Minister the need to take into account victims of sexual abuse in day schools. The Minister's predecessor, the Minister for Health and Children, Deputy Martin, is very much aware of the situation in Walsh Island national school in County Offaly where victims have been campaigning in isolation in recent years. A certain optimism was expressed prior to the current Minister taking office. I hope that an appropriate amendment will be accepted that would allow these victims to be compensated.

In the case in question, the crime perpetrated upon the victims has already been recorded. The teacher in question was eventually charged and ultimately convicted in open court. However, no redress on the part of the State is available to the victims. That is why the extension of this legislation is so important. Teachers, such as the one in the Walsh Island case – and I am sure there are others throughout the country – were acting for and on behalf of the State. The Walsh Island teacher was not only employed by the State and acting on its behalf, he was also protected by the State.

The deparmental file on this case will clearly show that complaints of a serious nature were made as far back as 25 years ago and were not acted upon by the Department. That is a scandal. Not only is the State not prepared to countenance the matter of compensation, but it actively protected this individual who was transferred from one school to another and employed again with references from the Church and public officials despite the knowledge in the Department that very serious complaints had been levelled against him. What do we say to the victims of this crime? I use the word "crime" advisedly because a crime has been recorded. What compensation is the Minister offering to these victims who have suffered hardship, anxiety, trauma, suffering and damage and have had to live with this for 25 years or more? Now, in 2002, we have an opportunity to compensate them. I welcome the extension the Minister announced last night but I acknowledge the persistence of Deputies Shortall, Creed and others in ensuring that this Bill became meaningful legislation. I welcome the fact that the Minister succumbed to pressure from Deputy Creed and others at the eleventh hour and I ask him to go a bit further.

That is not true. These are very complex issues and you should not play politics with them. That is all you are doing.

There is too much politics involved.

I would ask you to reflect on that comment, particularly having regard to the history of the individual involved as you know it.

Acting Chairman

The Deputy should speak through the Chair.

The Minister did not speak through the Chair.

Acting Chairman

I pulled up the Minister for interrupting you. I told him he would have an opportunity to reply.

I will not be provoked down the Minister's side-road in any event. I would ask him to address the point. Has he personally examined the files in his Department on this issue? What has he to say to the victims, other than what he has said out of the side of his mouth, which is a comment unbecoming of any Minister, much less a man purporting to hold an education brief? I ask that the Minister introduce an appropriate amendment in response to a very well-put and deserving case. The Minister says it would open the floodgates. That is no excuse. If people have been wronged by the State, particularly if the State actively protected the wrongdoer, victims are entitled to a measure of compensation. I ask the Minister to include such an entitlement in the Bill.

The Minister is aware that 714 cases came before the Laffoy Commission and 100 of those victims were in non-residential institutions. This occurred in normal national schools, not just in Walsh Island national school in County Offaly, but also in Portarlington, Ballybrittas and Kilkenny, where a teacher was moved from school to school with glowing references. When victims complained, the abuser was afforded a veil of protection. Government Ministers concealed what was happening and allowed it to continue. This person was charged and found guilty by the courts. That is sad for his family but the victims are still suffering and the Minister will add insult to injury if he does not grant their right to compensation.

If the Minister decides not to allow the category which covers the 100 cases of this nature reported to the Laffoy commission – people in non-residential institutions—

Acting Chairman

These amendments refer to definitions, they do not relate to the earlier amendments.

We are dealing with amendments Nos. 3, 7, 9 and 103.

Acting Chairman

Yes, but they deal with definitions.

The Minister is attempting to differentiate between pupils in different schools. At the end of amendment No. 103, the schools are named but those schools to which I am referring are not mentioned and I would like them to be included. If Walsh Island, Portarlington, Ballybrittas and the schools in Kilkenny – normal national schools – are included, I will be satisfied. The Minister's list takes up two and a half pages of the Bill. It is essential that the schools in question, which are on the Minister's files, be included as well.

Acting Chairman

The Minister has two minutes on this amendment and then as long as he wants on the conclusion of the debate on the amendment. Alternatively, the two minutes can be taken at the conclusion of the debate and he can make a longer reply now.

I will speak for two minutes. I am very annoyed with Deputy Flanagan's assertion that these amendments were introduced at the 11th hour. The Attorney General's office, the drafting office and my officials have given a great deal of consideration to them and done an excellent job. These are certainly not last minute adjustments, they are a genuine follow up to discussions on Committee Stage.

When were they introduced? This morning?

They were introduced yesterday.

They were introduced at the last minute.

They were introduced in due time yesterday.

That is the last minute.

They were introduced at the same time as those tabled by the Deputy. They were supposed to be in by 11 o'clock yesterday morning and they were.

The Minister should get back to the point. He is wandering.

Acting Chairman

The Minister is confined to a reply of two minutes and must be let reply in his own way.

That is the problem.

Acting Chairman

Deputies will have a chance to contribute a second time for two minutes and I ask them to listen to the Minister and save their comments for their own two minutes.

Deputy Flanagan also suggested that a better scheme was planned before I became Minister for Education and Science. I proposed this scheme. I battled to get a compensation scheme and brought this forward. This is a good scheme that will be effective and everything building up now shows that. The Deputies opposite asked me to consider if we could extend the Bill to include those who were resident in hospitals for the blind, orthopaedic hospitals and other categories. We have gone as far as we can without changing the nature of the legislation.

On the State's responsibility for schools, the State does not employ the teachers.

It pays them.

It protected them.

In the case mentioned by Deputy Enright, the Department was not even aware of the abuse until several years after the events for which the teacher was convicted. The criticism of the Department is that it did not deal with the matter in an appropriate manner when it was informed. It was not involved in the matter until much later.

Questions were asked in the Dáil in the early 1980s. The file was buried and the Minister and his officials know it.

I have no knowledge of a file being buried in that case. I know in other cases related to this legislation, files were buried and I appreciate that.

I made the Department aware of the chronology of events and the letters are on record.

The Minister made the point that the State does not employ the teachers. Who paid the teachers in respect of the cases referred to by Deputies Enright and Flanagan? What function did Department inspectors have if not one of supervising the day to day operations of teachers in the classrooms?

Earlier, I referred to vicarious liability and legal precedent in the UK. That will come back to haunt us. It is possible to deal with our requests in terms of day pupils in a fashion that will not incur any additional expense to the State because many, if not all, of these pupils have hedged their bets and, because of the extension of the statute of limitations, lodged claims with the courts. They will win in the courts but they will face the expense of the adversarial system and the associated trauma of giving evidence. The State will pay High Court compensation at levels that are exactly the same as those recommended by the compensation advisory committee. Will the Minister have the generosity to remove the obligation on them to go before the courts? Will he face up to the State's responsibility in this regard?

This is a sorry chapter in our history and not a reflection of the Minister's tenure in office. It is a reflection on Irish society at a time when matters were swept under the carpet. We were not prepared to face up to the behaviour of people in positions of authority who abused children in their care, but there is now an opportunity to deal with this matter once and for all. I regret that the manner in which the Minister proposes to proceed is piecemeal, will inflict additional trauma on victims and will save the State nothing because ultimately it will have to pay in the High Court.

It was stated earlier in the debate that the difficulty about extending the legislation to non-residential institutions, and to day schools in particular, was that the floodgates would be opened because too many cases are involved. The Minister has now stated that the State did not employ the teachers and the reason for not extending the legislation to day schools is that there was no employer-employee relationship between the State and the teachers. Will the Minister state in clear and unambiguous terms the reasons he is not prepared to accept the amendment? Why is the Minister prepared to exclude non-residential schools, particularly in open and shut cases where teachers have been convicted of the most heinous offences against vulnerable school children? Is he saying, as Minister for Education and Science, the State can absolve itself of all responsibility in this regard? Is he saying he is prepared to wash his hands of this matter altogether because the State had no responsibility? This is notwithstanding that school children are legally required to attend school, or that teachers – and, in the case in point, a headmaster – were paid by the Department. A file on each and every school teacher in the country is held in the Department of Education and Science, yet the Minister is attempting to absolve himself of all responsibility by saying, "Ah, but the State doesn't actually employ them". That simply will not wash because, as Deputy Creed quite rightly said, there is a question of vicarious liability. The Minister should clearly spell out his reasons for not accepting this amendment, which would go some way towards facilitating a measure of redress.

On Committee Stage there was a long session during which Deputy Creed and I argued this case. I commend the Minister for having listened to us and for including those categories of victim which were not included in the original Bill. While that is to be welcomed, we also made a strong case for those who were abused in day schools. Not only did we do so but a number of the Minister's backbenchers made that case on Second Stage. There is an unanswerable case for including in the terms of the Bill those people who suffered abuse in day schools. The same backbenchers attended the committee when we met victims of abuse in day schools. They made sympathetic noises but I wonder where they are today. Why are they not here at the crucial time making the same points to the Minister? Perhaps it is because at the end of the day they will vote in favour of a Bill that excludes the people they purported to support.

The point has already been made that there is no legal or moral basis for excluding people who were in the care of the State, in so far as they were attending schools that were funded by the State and were taught by teachers who were paid by the State. During that time the teachers, and in some cases teachers who abused them, were in loco parentis. Therefore, there is no excuse for excluding them from the terms of the Bill. There is certainly a strong moral obligation on the Minister to include them.

The Minister said he was concerned about the floodgates opening but on numerous occasions we have said we are not talking about such an eventuality. We are talking about a specific category of people who suffered serious sexual abuse in day schools, where such abuse was established in court and where, in many cases, the per petrators were convicted. That is not a wide category of people but they were badly damaged and wronged while in the care of the State. At this late stage, will the Minister reconsider the inclusion of those victims within the terms of the Bill? There is no moral or legal basis for excluding them.

The Minister has also raised the issue of including special schools but I am prepared to bet any money that there will be a legal challenge to that. There is no possible basis for drawing an arbitrary distinction between people who were abused in special schools on the basis of whether they were residents or day pupils. There is no question but that there will be a legal challenge in that regard. When day pupils in that situation win that case, as I believe they will, the follow on will mean that pupils in ordinary day schools will also be entitled to compensation. I am asking the Minister to reconsider that point because there is a real danger that his decision to exclude day pupils will be challenged in the courts.

The Minister has been a Member of the House for about 25 years. Consequently, he is familiar with parliamentary procedure and knows that at any time the Title to a bill can be changed. He stated, "I have gone as far as I could go without changing the legislation", but he is still empowered to change the legislation by removing the word "Residential" from the Title. It could be entitled the "Abuse and Injury Redress Bill", which would be adequate, and the amended Bill could then go to the Seanad without difficulty.

We are dealing with people who had power and influence and who, in their own way, had control over other people of humble origins. The latter were good, proud and hard-working people but they did not have the ability or wherewithal to stand up to those with such power and influence. I did not want to have to go into this, but the Minister should remember that in connection with the Donal Dunne, Noel Conway and Brother Jack Kelly cases, between them there were 60 victims who testified in court. The Minister should remember also that approximately 20 teachers from day schools have been convicted on the evidence of 200 victims.

In a matter of this nature it is up to the Government and the Minister to investigate. For the Minister to say his Department had no control over the teachers at the time is a serious abdication of his ministerial responsibility. His predecessor, Deputy Martin, said at the time that the handling of a written complaint in 1982 was seriously lacking, even by the standards of the time. On RTE's "Prime Time" programme he said it was "mind boggling".

In 1940, Donal Dunne's abuse was reported to the principal of Scoil Mhuire in Marino. In 1969, it was reported to the Garda Síochána, a Department of Education inspector and the school manager. In 1982 the matter was reported to the Department of Education, a school inspector and the Bishop of Kildare and Leighlin. Donal Dunne was first convicted for offences that occurred in 1995, decades after victims and parents had informed the authorities. The Tánaiste went on record and she said the State had less responsibility and no authority to exercise it. If ever there was clear nonsense, then that was it. The Minister must take out the word "residential". If he does not he is allowing himself to be part of the continuation of abuse and of people in power holding on to power and not having the generosity and sense of fairness to pay compensation to those victims in national schools at the time. People across my constituency of Laois-Offaly suffered then and they are still suffering. If the State apologised to them and paid compensation it would be in the best interests of everybody. The Minister may walk away with his hands behind his back and say he can do nothing more to change the legislation, but I say that it can be changed today and I call upon him to change it.

There are procedures for dealing with the type of case which Deputy Enright has raised. The Minister for Justice, Equality and Law Reform amended the Statute of Limitations to provide for cases like those mentioned by Deputies Enright and Flanagan, and those amendments were availed of. In the current situation I set out to accommodate the concerns expressed in a way consistent with the principles of the Bill as published and which would avoid a flood of claimants such as would overwhelm the survivors of institutional abuse for whom the scheme was devised in the first place.

As the Bill stands it applies to industrial and reformatory schools, to orphanages and children's homes, in respect of which public bodies had regulatory and supervisory functions.

They had regulatory and supervisory functions in respect of the national schools.

As such, the Bill is quite narrowly and effectively focused on people whose parents to a degree were replaced by the State when they were children. The validation threshold in the Bill is very low, precisely because the Bill is so narrowly focused on a category of institution in respect of which there is general acceptance that the conditions in them frequently amounted to brutal and inhumane treatment, notwithstanding the Laffoy Commission which will not report for some years. Although there are incidences of abuse in the other places proposed, notably ordinary schools, there is no evidence of a generally abusive approach to children although it must be acknowledged that corporal punishment was widespread and often severe in all or virtually all ordinary schools up to the 1970s.

I was not speaking about corporal punishment; I meant serious sexual abuses.

In the circumstances I consider that the extension of the scheme outside of the residential institutions in respect of which public bodies had a significant role in child protection, would not be feasible in this Bill. Any such extension would either lead to a flood of claims or if criteria were set down to limit access to the scheme, these would be arbitrary and seen as very unfair and inequitable. This is particularly so in the case of ordinary schools. Proposals have been made to permit applicants to the scheme from ordinary schools where there has been a conviction of a school employee for abuse. This approach would deal with the validation issue but it would also create a strong sense of unfairness in the case of those who have suffered abuse but whose abusers cannot be prosecuted due to lack of evidence or because the abuser has died or the survivor cannot face the trauma and the stress of a criminal prosecution.

I propose accordingly that the terms of the Bill be extended to those instances where children were in residential care in institutions in respect of which public bodies had supervisory or regulatory functions. This involves extension of the compensation scheme to hospitals and special schools. We previously covered 77 institutions in the amendments and we will now cover 109 institutions and these institutions are set out in the text of amendment No. 103. It is a major extension within the context of the Bill as drafted and as completed on Committee Stage. I recommend these amendments to the House.

Carlow-Kilkenny): There is no right of reply at this stage.

Why is the Minister walking away when he has evidence on file in his Department of serious sexual abuse in national schools?

Acting Chairman

I cannot allow interventions at this stage, Deputy. I must put the question to the House.

On a point of order, will the Chair clarify a point of procedure? In effect, amendments Nos. 1, 8, 101, 102, are very similar in substance to amendments Nos. 3, 7, 9 and 103, which we are now discussing. In the grouping of those amendments, Nos. 1, 8, 101 and 102, for debate purposes, I take it that I will have an opportunity again to vote when we discuss amendment No. 8, because this is the last opportunity in this debate. While I welcome what the Minister has done in extending some concessions and increasing the number of institutions covered, my colleagues and I think the Minister has not done enough. This is the last opportunity to amend this legislation and I seek the guidance of the Chair as to whether I will have an opportunity of voting on amendment No. 8 when we reach it.

Acting Chairman

I would like to accommodate the Deputy but unfortunately that amendment cannot be moved because of the decision on amendment No. 1.

I understood in voting on amendment No. 1, that while the other amendments were grouped for debate purposes that there was an entitlement.

Acting Chairman

Once amendment No. 1 is passed then amendment No. 8 cannot be moved.

I welcome the contents of the Minister's amendments Nos. 3, 7, 9 and 103, but on the grounds that they do not go far enough I have no choice but to oppose them.

Amendment put and declared carried.

Acting Chairman

Amendment No. 4 is a drafting amendment in the name of the Minister.

I move amendment No. 4:

In page 4, line 20, to delete "1941" and substitute "2001".

This is a purely technical amendment.

Amendment agreed to.

Acting Chairman

Amendment No. 5 is consequential on amendment No. 34. Amendments Nos. 31 and 32 are also consequential on amendment No. 34 and amendments Nos. 28 and 35 are related. Amendments Nos. 12, 13 and 27 are an alternative composite proposal. Amendments Nos. 5, 12, 13, 27, 28, 31, 32, 34 and 35, together by agreement. Is that clear to the House or will I read it again?

I move amendment No. 5:

In page 4, between lines 20 and 21, to insert the following:

"‘relevant person' means–

(a) a person who is referred to in an application as having carried out the acts complained of in the application, and

(b) in the case of an institution that is referred to in an application as being the institution in which the acts complained of in the application were carried out, the person who is concerned with the systems of management, administration, operation, supervision, inspection and regulation of such institution as the institution concerned may determine and specify in writing to the Board;”.

These amendments relate to the issue of accused persons speaking in their own defence. This matter was clearly one which caused a great deal of concern to Deputies. In particular it has been said that accused persons should have an opportunity to defend their reputation. It is not the intention of the Bill to create a court of law by another route.

I also said I considered it to be a function of the commission to inquire into child abuse to deliberate on issues such as liability and responsibility for abuse. Ultimately, it is a matter for the courts to make findings of guilt in relation to individuals. However, I am conscious of the importance of this issue for many people and their desire to have a hearing if they are accused of abuse. In proposing these amendments I hope to allay the fears of those who feel justice may suffer if they are not allowed a hearing and the opportunity to defend themselves.

In making these proposals I emphasise that these matters will remain confidential and that an award to an applicant does not mean that a corresponding person against whom allegations have been made is guilty. The board will now be required to inform accused persons and managers of institutions where allegations of abuse are made. The accused person may, at his or her own volition, make written representations to the board and may apply to the board to make oral representations. A refusal by the board to allow oral evidence can be reviewed by the review committee. An accused person may be represented by legal representatives and may cross examine his or her accuser in defence of his or her version of the truth and good name. An accused person may also be cross examined by the person who is alleging abuse.

Inevitably, in such a scenario there will be a conflict of evidence and the amendments provide that in such an event medical evidence will prove decisive. If the medical evidence establishes injury consistent with abuse as alleged, compensation will be paid. Overall, the provisions are a balanced and measured approach to the issue of potential false accusation. We are dealing here with an issue raised and discussed on Committee Stage and with these amendments I am attempting to meet the concerns raised by Deputies.

It is most unsatisfactory that amendment No. 34, which is detailed and lengthy, was made available to Opposition spokespersons only this morning. The amendments under consideration deal with serious concerns raised on Committee Stage, including by the Minister's backbenchers. In view of what the Minister has said they go a considerable way towards allaying them.

International comparisons can be considered when drafting legislation in this area. I understand the process in Nova Scotia unravelled because of the failure to notify persons against whom allegations were made and who challenged the findings. It placed a question mark on all awards made to victims because it brought the process into disrepute.

It is only fair that individuals against whom allegations of abuse are made are notified and given the opportunity, if they wish, to defend their good names. However, debate on this aspect must be cognisant of other provisions in the Bill, including the provision that acceptance of an award from the redress board obliges the victim to undertake not to pursue the perpetrator through the courts. I suspect that in many of the bona fide cases that will come before the redress board, the accused on notification will not avail of the entitlement to legal representation and to make submissions. Nevertheless, it is vital that a safety net is provided to ensure that nobody's good name is tarnished without the opportunity of defence.

Given that we received these amendments only this morning, will the Minister indicate if the conclusions I make about their implications are correct? Will he confirm that any persons against whom an allegation is made will have the right to defend their good name if they wish? Where the alleged perpetrator is deceased is the redress board obliged to notify family members? Not all alleged perpetrators will have been members of religious orders, for example, some may have been employees. While it is unsatisfactory to have received these amendments at such short notice, I welcome the thrust of them in so far as they appear to address the concerns raised on Committee Stage.

I reiterate Deputy Creed's point on the short notice in relation to these amendments. On Committee Stage we asked the Minister to ensure we would have a period of at least four or five days to consider his amendments before Report and Final Stages. Regrettably, he has not complied with our request. We received most of these amendments at 9 a.m. or 10 a.m. this morning and have had no opportunity to consider them in detail. It is a very unsatisfactory way to treat Members and to expect us to do our job.

I recognise the Minister has taken on board points made on Committee Stage. However, I believe we are creating a monster here. If a survivor makes allegations and the accused has a right to refute them we are essentially asking the board to act as a court of law, to establish if the abuse took place and to determine if the accused is responsible and guilty. I do not see how a board set up in this manner can have the power to act in this way.

The Minister said that, ultimately, the medical evidence will decide the matter. Is the person alleged to have inflicted the abuse entitled to have it refuted? Where does it end and who adjudicates on this? In the limited time I have had to consider this aspect it is apparent that we are making a big mistake to proceed on this basis. The purpose of the board is to allow a speedy redress to be made to victims, many of whom are in middle or old age, but this will not happen if the Minister takes this approach. The deliberations of the board are likely to proceed for an endless period of time.

The legal basis for establishing the board in this manner is questionable. It is impossible to expect members of a board to adjudicate on these serious issues. The Minister is creating a monster: this is not the right way to go about it.

Essentially what Deputy Creed said is correct. A person would have a right to defend their good name and to put the case. In respect of a deceased person, the institution would be informed. Regarding the issue raised by Deputy Shortall, that was always my concern and is one of the reasons that initially we did not take that route. No matter which route one takes one has to walk a tight rope, and we are making provision for natural justice to apply. The board will not make any finding, that will be a matter for the Laffoy Commission, but it will rely on the medical evidence in relation to cases. One can have a settlement irrespective of any of that.

Will the alleged perpetrator have a right to refuse a settlement and call his or her own medical witnesses?

No, the board will make the decision.

When the Taoiseach originally apologised to the victims of abuse it was flagged at that stage that there would be a compensation tribunal with all the panoply of powers which tribunals have in terms of legal standing, finding of fact, etc. Inadvertently or otherwise, in his reply the Minister referred to "natural justice", "defending their good name" and "putting the case". These phrases, as well as "the apportioning of blame" appear to be the language of a court.

No matter what way it is dressed up it appears as if the redress board, or the review committee which will ultimately review a finding of the redress board, will make findings of fact in individual cases. Given that we have recognised that it would be against the principles of natural justice to make those findings without giving the alleged perpetrators of abuse a right to put their case, are we not back to the point I made on Second and Committee Stages that what we should be establishing is a tribunal with all the necessary legal supports to make findings of fact? I welcome the thrust of the amendment which proposes to allow access in natural justice to alleged perpetrators but in many respects it is melting the ice under the Minister and making a strong case for the establishment of a tribunal of inquiry and compensation similar to the hepatitis C tribunal which is awarding compensation rather than this redress board.

Natural justice does not just apply in the courts, it applies in all administrations. It is a normal part of life in ensuring that people against whom there is an allegation have an opportunity to at least put their side of the case in any of those instances. There will be no apportioning of blame, no finding of fact. The finding of fact will be a matter for the Laffoy Commission. In effect two things are going on in parallel. That was the road we chose to go from the beginning. We could have said, and that was the view earlier, that when the Laffoy Commission reported one could then take up the compensation issue, but that would take a long time to complete. For that reason we discussed the issue and come to the conclusion that it would be preferable to run a parallel compensation redress board in the interest of the victims and survivors. That is what this amendment is designed to do. I am of the view that we are making reasonable arrangements to cover the points raised by Deputies and that they are workable. In any event there can be a settlement if such a case arises as Deputies fear.

Amendment agreed to.

I move amendment No. 6:

In page 4, between lines 23 and 24, to insert the following:

"‘spouse', in relation to a person, includes a person with whom the person is or was at a time cohabiting;".

The question of the right of the partner of a person, other than the spouse, having certain rights in relation to the claim of an applicant now deceased was raised on Committee Stage. I gave an undertaking to examine that suggestion. I am satisfied that the expansion of that right is sensible in the circumstances and is necessary to acknowledge the varied family circumstances of potential applicants.

Amendment agreed to.

I move amendment No. 7:

In page 4, between lines 32 and 33, to insert the following:

"(3) An applicant who was resident in an institution and was transferred from that institution to another place of residence which carried on the business of a laundry and who suffered abuse while resident in that laundry shall be deemed, at the time of the abuse, to have been resident in that institution.".

On a point of order, the Minister was given an opportunity to move amendment No. 7 which has been discussed with amendment No. 3. I asked previously in respect of amendment No. 8, which had been discussed with amendment No. 1, whether there was an entitlement to move that amendment subsequently.

That was due to the fact that amendment No. 1 was negatived.

Amendment agreed to.
Amendment No. 8 not moved.

I move amendment No. 9:

In page 5, to delete lines 23 to 27 and substitute the following:

"4.–(1) The Minister may, by order, provide for the insertion in the Schedule of any industrial school, reformatory school, orphanage, childrens home, special school which was established for the purpose of providing education services to children with a physical or intellectual disability or a hospital providing medical or psychiatric services to people with a physical or mental disability in which children were placed and resident and in respect of which a public body had a regulatory or inspection function.”.

This amendment provides for the additional institutions.

That the Minister did not tell us about last week when he negotiated the compensation awards.

I did say we were working on that.

Amendment agreed to.

Acting Chairman

Amendment No. 11 is an alternative to amendment No. 10 and they may be discussed together.

I move amendment No. 10:

In page 5, line 36, after "advertisement" to insert ", direct correspondence with persons who were residents of an institution".

I undertook to consider this matter on Committee Stage and I am happy to make the amendment.

Amendment agreed to.
Amendments Nos. 11 to 13, inclusive, not moved.
Bill recommitted in respect of amendment No. 14.

I move amendment No. 14:

In page 6, between lines 7 and 8, to insert the following:

"(4) The Board may–

(a) give directions for the purposes of exercising its functions under this Act,

and

(b) make provision for the taking of evidence on commission for the purposes of this Act.”.

This is a technical amendment designed to allow the board to make arrangements for evidence to be taken outside the jurisdiction. It is an entirely sensible proposal which will be of particular benefit to applicants unwilling or unable to travel to the offices of the board.

Amendment agreed to.
Bill reported with amendment.

Acting Chairman

We now proceed to amendment No. 15 to which amendment No. 16 is an alternative. They may be discussed together.

I will not move my amendment in favour of the Minister's amendment. I thank him for taking on board the sentiments expressed in my amendment.

Amendment No. 15 not moved.

I move amendment No. 16:

In page 6, between lines 12 and 13, to insert the following:

"(3) In appointing the Chairperson and ordinary members of the Board, the Minister shall have regard to the desirability of ensuring a reasonable balance between the number of women and men so appointed.".

The amendment meets the concerns raised by Deputy Shortall.

What does the Minister consider to be "a reasonable balance"?

Deputy Martin's.

We try to achieve 40%. In some cases I have achieved a higher percentage.

Amendment agreed to.

I move amendment No. 17:

In page 6, line 18, to delete "the Minister" and substitute "by resolution of the Oireachtas".

The appointment and removal of members of the board should be an executive rather than a legislative function. This position is consistent with the appointment of members of the commission to inquire into child abuse. I do not accept the amendment.

I tabled the amendment because of my concern that the Minister is under no obligation to bring such proposals before the Oireachtas. This creates potential for undue interference. I am not making such an allegation against the Minister, but who knows who his successor will be? It would be preferable that overt interference in the operations of the redress board, such as the removal of one of its members, should take place by resolution of the Oireachtas. The Minister should be obliged to at least lay his proposals before the House for debate and be answerable for them.

This is the normal procedure. People expect the Minister of the day to exercise responsibility in this regard. As an executive function, the duty falls on him or her. It is very rare for a difficulty to arise where the proposition has been put in practice. There is also an obligation on the Minister to make proper arrangements for people to have their views heard. As this is a normal part of his or her function, it is preferable that this power lies with the Minister.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 6, between lines 28 and 29, to insert the following:

"(7) The Chairperson shall be a serving member of the judiciary of High Court rank.".

The report to the Minister for Education and Science by the compensation advisory committee found that compensation awards should be commensurate with High Court awards. It is only logical, therefore, that the chairperson should be a serving member of the Judiciary of High Court rank.

In principle, I agree it would be appropriate that the chairperson of the board would be a senior serving judge. However, we should be mindful that others, including retired senior members of the Judiciary and legal profession, are equally capable of discharging the function. The board's duties will be onerous and require several years' devotion. Therefore, we must be practical and leave open the option of having a broader field of potential appointees. I guarantee that a great deal of thought will accompany the process of appointing the chairperson and other members of the board. The chairperson should have considerable legal expertise and experience. I do not accept the amendment.

Amendment, by leave, withdrawn.

Acting Chairman

We now proceed to amendment No. 19. Amendments Nos. 30 and 33 are consequential. Amendments Nos. 19, 30 and 33 may be discussed together.

I move amendment No. 19:

In page 6, lines 34 to 37, to delete all words from and including "childhood," in line 34 down to and including "paragraph (c),” in line 37 and substitute the following:

"childhood, and

(c) that he or she was injured while so resident and that injury is consistent with any abuse that is alleged to have occurred while so resident,”.

The text of section 7(1)(b) and (c) currently requires that an applicant should prove that he or she was abused while resident in an institution. It is more appropriate that an applicant should show that he or she was injured in a manner consistent with abuse, given that there will be no detailed inquiry into the facts of abuse. The Bill is based on the understanding that, at many years remove, it will be almost impossible for many applicants to prove, even on the balance of probabilities, that they were abused in a particular institution at a particular time by a particular individual.

As the Taoiseach acknowledged in 1999, there is no doubt that abuse occurred in these institutions and that victims are entitled to redress. It would be cruel to force on them a standard of proof which would be all but impossible to meet. The scheme provides for an applicant to show injuries consistent with abuse. This would be the question for the board to determine. I have indicated that those who have allegations made against them will have an opportunity to defend their reputations. The amendment is consistent with my intention that, as far as possible, the redress board should not become an alternative to a criminal court.

Amendment agreed to.

Acting Chairman

As amendments Nos. 20 and 21 form a composite proposal, they may be discussed together.

I move amendment No. 20:

In page 7, line 8, to delete "not".

The issue of proof against persons accused and their rights to a hearing is dealt with elsewhere in the Bill. I propose, therefore, that these amendments be rejected in favour of the other proposals.

Amendment, by leave, withdrawn.
Amendment No. 21 not moved.

I move amendment No. 22:

In page 7, line 19, to delete "of" and substitute "concerning the Statutes of Limitations or".

On Committee Stage I sought to restrict the right of those whose case had been the subject of a determination by a court to make an application to the board. That was entirely correct as it would be inappropriate for the board to make decisions over the heads of the courts. However, in so far as an applicant has had a determination made solely in relation to the statute of limitations, it would be unduly harsh to rule out the redress route. This process deliberately avoids applying a time bar on applications.

The principal obstacle faced by potential plaintiffs in taking a case involving abuse in residential institutions before the courts is the passage of time and it would be unfair to compound that difficulty. This amendment specifically provides that a determination relating only to the statute of limitations will not rule out an applicant from the compensation scheme.

Amendment agreed to.
Bill recommitted in respect of amendment No. 23.

I move amendment No. 23:

In page 7, between lines 40 and 41, to insert the following:

"(4) Where an award is made in respect of an application pursuant to this section, the Board shall direct that such award be paid to the personal representatives of the deceased person referred to in subsection (1) or the applicant referred to in subsection (2) and that the personal representatives shall treat such award as if it had been paid to such deceased person or such applicant immediately prior to his or her death.

(5) In this section ‘personal representative' has the meaning assigned to it by the Succession Act, 1965.".

This amendment is technical in nature. Its purpose is to clarify the procedures for the distribution of awards to the spouses, partners or children of victims who have passed away between the time of the Taoiseach's statement in 1999 and the making of an award. Awards made will be distributed in accordance with either the will or intestacy of the deceased applicant. This is in accordance with well established succession law and is the fairest approach to the issue. The purpose, therefore, is to distribute awards in accordance with the Succession Act if no will has been made.

Amendment agreed to.
Bill reported with amendment.

I move amendment No. 24:

In page 7, line 43, to delete "one" and substitute "two".

I appreciate Deputy Creed's concern about this matter. A quorum of three board members for a hearing might be desirable but regard must be had to the workload of the board and the absolute necessity that its work is completed without undue delay. It is likely that the board will sit in panels. If each panel is to include three rather than two people, it complicates greatly the process of finding a sufficient number of people with the appropriate skills to carry out this work. Two person panels are appropriate and will lead to an efficient and effective process.

There is a mathematical possibility that in the event of the redress board sitting in even numbers there will be a conflict of opinion which cannot be resolved. That is the reason I tabled the amendment, but I will not push it to a vote.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 25 is in the name of Deputy Creed. Amendment No. 38 is related so the proposal is to discuss amendments Nos. 25 and 38 together, by agreement.

I move amendment No. 25:

In page 8, line 1, after "applicant" to insert "or his/her agent".

While I understand the Deputy's objective, these amendments are not necessary. Each claimant can be legally represented and his or her legal expenses will be met.

Amendment, by leave, withdrawn.

I move amendment No. 26:

In page 8, line 20, to delete "may" and substitute "shall".

The effect of the Deputy's amendment would be that each application would have to go to a full hearing. On Committee Stage, however, I proposed that applications can be dealt with by way of settlement, and we discussed this matter earlier also. This is to allow for the quick resolution of uncontested cases. A hearing in each and every case would not be necessary. That provision is now part of the Bill, and I ask the Deputy to recognise that.

Amendment, by leave, withdrawn.
Amendment No. 27 not moved.

I move amendment No. 28:

In page 8, line 27, after "subsection (4)”, to insert “and, where appropriate, any matter arising out of section 11”.

Amendment agreed to.
Bill recommitted in respect of amendment No. 29.

I move 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,

(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.”.

The compensation advisory committee reported to me recently and that report was published on 15 January. Among the recommendations was the desirability of provision being made for an interim payment where an applicant is getting on in years or is unwell. For a great many of the victims, the suffering and injury was manifested in their economic conditions throughout their lives. The damage is not limited in time to the years of childhood spent away from parental care and it is not limited in scope to the physical and psychological. It is a sad fact that some applicants will not live to see the final award that the board may make in their own case, yet there is much to say in favour of an interim payment. That could relieve immediate economic hardship and serve as a symbol of the recompense society is making while the victim can still appreciate the gesture. This was a sensible and compassionate proposal and I am pleased to bring it to the House.

Why did the Minister see fit to limit the size of an interim reward to €10,000 if the report to the Minister for Education and Science by the compensation advisory committee recommends that all awards be commensurate with High Court awards? Why not have the interim award base at the minimum level of compensation that the High Court would allocate in any case? If it is satisfied that an award is due, why not make it the minimum amount that would be allocated in the High Court because the €10,000 maximum for an interim reward is unduly small? Why not make the interim award the minimum award recommended by the advisory committee. I refer to page 67 of the compensation advisory committee report which states that in regard to band 1, the award payable would be €50,000. I fail to understand why we are pitching the amount at €10,000 as an interim when the High Court would award from €50,000 upwards. Perhaps the Minister might consider that matter during the lunch break.

No, the €10,000 is mentioned elsewhere in it.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
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