I welcome Mr. Boland, Mr. Kennedy and Ms Grogan from the Department of Education and Science to discuss regulations under sections 17 and 33 of the Residential Institutions Redress Act 2002 and miscellaneous provisions. I thank them for agreeing to discuss the regulations with the committee. Members of the committee are covered by privilege while witnesses are not. I remind members not to use the names of individuals who are identifiable. I invite Mr. Boland to make a presentation, which will be followed by a question and answer session.
Residential Institutions Redress Act 2002: Presentation.
Mr. Tom Boland
It is good to be here and I hope we can be helpful to the committee. That is certainly our intention. I am director of strategic policy and legal services in the Department and I have been closely involved with the preparation and drafting of the Residential Institutions Redress Act 2002 and the regulations. I should be in a good position to help the committee in terms of factual information about the legislation. Paul Kennedy is beside me. He is principal officer in the residential institutions redress unit and beside him is Maria Grogan, who is his deputy. The unit is responsible for all the administrative arrangements and issues that arise from the Government's and the Department's programme of initiatives dealing with past childhood abuse.
The regulations, as always, are a way of trying to give flesh and detail to the provisions of the Act so that the redress board can do its business. They fall under three broad categories. A key one has to do with the amounts of awards the board can make, another relates to issues to do with legal and medical costs primarily and the third has to do with a range of miscellaneous technical issues relating to service of notice and informing people against whom allegations are made. I will take them in that order.
As I said, the regulation relating to the amount of awards is probably one of the key regulations in that it is central to the work of the board. The history of these regulations begins in the middle of 2001 when the then Minister appointed an expert body of legal and medical people to advise on how awards might be made or calculated for past childhood abuse. The committee was chaired by Sean Ryan SC and, as I said, included medical and legal personnel. It reported at the beginning of last year - January 2002. The Government, in all material respects and, indeed, completely, accepted the report of what we will call the Ryan committee. In the course of its work, it consulted quite widely with survivor groups and their solicitors and with the Bar Counsel. It conducted a lot of research into what happens internationally and looked at a range of different compensation schemes in the UK, in particular, and, I think, Canada.
The committee also looked in considerable detail at the process of making awards in the High Court. The reason it did so was that it concluded in its report that awards to be made by the redress board should be those which an applicant could reasonably expect to get in the High Court. The difficulty for it, to some extent, and the reason it had to do so much research was that there were no precedents - indeed, there are still no precedents - of High Court judgments in relation to this issue of past child abuse, so it looked more generally at issues to do with civil liability and how the High Court has dealt with that and awarded damages.
Having looked at that and at the effects of abuse on children in a detailed way, the committee came up with a unique system for assessing damages. Following its examination of systems in other jurisdictions, this is very much its own system and from the point of view of the Department, the Government and the board, it is one which seems to be very workable. Effectively, the amount of compensation which a person can receive will be determined by the number of points or the weighting attached to their particular case. The number of points or the weighting is determined by a very specific table which it has drawn up under which there are four areas where points or weightings can be awarded. The first one is severity of abuse and that can have a weighting of up to 25. Moving on from the abuse itself, it looks at what results from the abuse and at the medical-psychiatric evidence of damage and at what it calls the psycho-social sequelae - effectively, how the act and the damage has affected the person in his or her life - and somewhat related to that, loss of opportunity. It gives various weightings, 1-25, 1-30, 1-30 and 1-15, for those categories. They are set out in schedule one of the regulations.
Having completed the weighting, the board will then go to schedule two which sets out the amounts against the possible weighting or points accorded to each case. One of the issues addressed in the Act and which was a key to the Ryan committee's approach was that there needed to be discretion on the part of the board to meet individual situations. It was not, if you like, a one size fits all kind of approach and there had to be a sense in which the individual circumstances of each applicant could be taken account of by the board. That is largely why the award amounts by reference to redress band are in bands themselves - between €200,000 and €300,000 and so on. This is set out in schedule two.
The basic award can be any figure up to €300,000 depending on the points awarded. However, the committee also recommended - this is now accepted by the Minister and has been made in these regulations - that in a particular case, the board could go beyond €300,000 having regard to all the circumstances. To that extent, there is, in theory, no limit. I suppose there is a limit in the sense that the board will still try to do that which it would expect the High Court to do in a particular situation but the upper limit of €300,000 can be breached. It can be breached in two other respects also. There is provision in the regulations, as recommended by the committee, for an additional award of 20% of the basic award in a situation where the High Court might award aggravated damages. This would be in a situation where the conduct of defendants in a High Court in some way compounded the injury. There is also a capacity for the board to give awards for past medical expenses and also an award for future medical expenses. The latter is capped at 10% of the total amount of the award. Broadly speaking, that is how the awards are calculated. Obviously, it being quite central to the work of the board, there are issues about which members might wish to talk when we come to the question and answer session.
The section 33 regulations are effectively about costs. The legislation provides that the redress board will pay costs and provides for the range of issues for which the redress board may give costs. That is contained in paragraph three of the regulation concerning fees, charges, outlays, travelling expenses of witnesses and applicants to the redress board and so on. The board is also empowered to make a payment for medical reports in regulation four. A point made to us in the course of consultation with survivor support groups and their legal advisers in relation to these regulations was that one of the difficulties for an applicant coming before the board was getting a medical report on which to base or ground their application. The medical report is key to the redress process. The only difficulty was that some in the medical profession might be reluctant to release reports when they had no guarantee of payment and when payment could be delayed by many months or maybe even a year or two depending on the up-take of the scheme. This provides what one might call an up-front payment for the medical report which allows the process to go forward without having a row about costs. The amount of the medical report is to be agreed with the board and in default of that, there is a provision for arbitration by the Irish Medical Organisation.
Regulation five is, to some extent, technical. It is to confirm that a settlement of an application is an award of an application. The expectation is that a large number of applicants will be dealt with by way of settlement, that is, real documents and a representative of the board and of the applicant sitting down and saying, "What is this case worth?", if I can put it that way, and coming up with figure as opposed to formal oral hearings and examination and cross examination of witnesses. It is expected and hoped that the majority of cases will be dealt with through that settlement process because that is the best way to expedite the work of the board.
To elaborate on the third set of regulations, described as the miscellaneous provisions regulations, the operative section to these is Part 2. Part 2 is fairly logical and merely sets out circumstances to ensure that an application received by a board is legible and what happens if it is not. Applicants must submit reasonably legible applications.
Part 3 arises from an issue that arose in the course of the preparation of the legislation. Allegations of abuse will be made before the redress board against individuals and the question arose as to what rights these individuals should have in respect of defending their good name or putting their side of the story. For reasons of constitutional fairness and fair procedure, it was felt that the people against whom allegations were made and the managers of the institutions should be given some opportunity to put their side of the case to the redress board. This is what Part 3 is aimed at. The relevant person referred to is the a person against whom an allegation of abuse is made and specified relevant persons are effectively the owners and managers of institutions, employers and so on.
The board seeks to establish if the alleged abuser is living and the seventh paragraph provides that the board may establish with, say, the institution, Department or whatever, who the specified relevant person should be, that is, who they liaise with in terms of getting information on the presence or whereabouts of an alleged abuser. This requires of the board - as does the Act - that where an application for redress is received, it will send the information from that application to the relevant person and specified relevant person, that is, the person against whom allegations are made and their former or present employer, director, or whatever. The information includes the name and address of the institution and the period of residence and basic information about the allegation.
Once the specified relevant person gets that information they have the right to request the application form, but in providing it, the board will hold back certain information of a confidential nature which will only be released in very exceptional circumstances, set out in the regulations, including the medical reports, photographs and address. This is to preserve the anonymity and, mainly, confidentiality and privacy of the applicant.
Once they have received the application form, the relevant person will inform the person whether or not they intend to give evidence which they must set out. In the event that the board refuses them the right to give evidence they may appeal to the review board. That is set out in subparagraph (vi). The ninth paragraph requires the board to provide the applicant with the information they get from the other side, so there must be a two-way exchange of information. There is no question of anybody being left short and there is specific provision in the regulations that a specified relevant person cannot give oral evidence or cannot cross-examine on an issue that they have not flagged in the written evidence in advance. This is to ensure there are no surprises if there is an oral hearing.
I must apologise for the language used here. In the drafting I sometimes became confused between the terms "relevant person" and "specified relevant person", but it is necessary to create that kind of detail and process. It is concerned with ensuring that people against whom allegations are made have a right to appear before the board and say it did happen, or, more likely, that it did not happen and this is their side of the story. It arises because of constitutional and fair procedure reasons.
The last two parts are largely technical. Part 4 provides that the board can determine how evidence is to be given and Part 5 relates to how notices are to be served both on the board and by the board. These are standard provisions about whether solicitors are on record and so on. We can deal with them in more detail later, but they are largely technical provisions. That is broadly what the regulations are about. My colleagues and I are at the disposal of the committee to consider the detail.
Thank you, Mr. Boland. I am sure that has been very helpful for the members. I call Deputy O'Sullivan.
The Committee of Public Accounts will deal with certain aspects of this issue and there are certain matters we are prohibited from raising, especially regarding the contingent liability of the State. No member of this committee wishes to delay the procedures for victims or the operation of the board, so that victims may, as soon as possible, have the opportunity to seek redress.
However, there are questions we wish to raise, many of them related to policy issues. They are concerned mainly with how decisions were made regarding the establishment of the board. I am sure the Chairman will stop me if some of my questions are beyond the scope of what we are permitted to ask.
With regard to the negotiations in the lead-up to the Act, I understand that discussions took place up to December 2001 at which point they broke down. Subsequently, the former Minister for Education and Science, Deputy Woods, intervened and indicated in a briefing to the former Committee on Education and Science that he and his Secretary General decided to make a last attempt to deal with this matter because in an earlier briefing to the committee he had indicated that negotiations were under way and he hoped they would be concluded. He went on to say that after the negations collapsed he sought a solution in the period immediately before Christmas 2001 and that he achieved a change after Christmas. Was there a policy change in the Department regarding the obligations of the religious congregations and the State? In asking this I hope I am not straying into areas we are not supposed to raise. It is my understanding that up to or around December 2001, the general policy was that the obligation should have been divided on a more or less 50-50 basis. Was there a policy change at that time and, if so, who was involved in making it? Was it approved by the Attorney General's office and the Department of Finance before the memorandum finally went to the Government in June 2002?
The Deputy is straying into ground to be covered by the Committee of Public Accounts.
These are policy questions. They also deal with the financial liability of the State.
To some extent.
I wish to raise them and I hope I will get an answer. The expert group established under Sean Ryan provided the figures that basically appear in these regulations. Who assessed the likely numbers who might access the redress board or, alternatively, the courts? Was it the committee established by Mr. Ryan or another Department official?
I am not sure if Mr. Boland will be in a position to answer my next questions. A number of requests were submitted under the Freedom of Information Act, most of which were refused. A small amount of information was given to my colleague, Deputy Shortall, and others may have sought answers. Why were requests for information on the lists of properties to be transferred refused? Yesterday, I submitted a parliamentary question to the Minister for Education and Science but the information regarding the list of properties is still not available or is not being publicly provided, even of properties that have been transferred. In another question to the Minister I asked about the estimated amounts involved. The amount was in the region of €500 million, based on 4,000 claimants. That relates to my question about how the number of claimants was assessed.
Under section 16, there is a provision that the Act can be reviewed. In light of there appearing to be more claimants than was originally assessed, is the Department considering reviewing the Act? I do not know if Mr. Boland can give me an answer to this question. Does he expect, on the original assessment of numbers, that victims are likely to take the route of the redress board or that there now needs to be a reassessment of the numbers who might choose to go to court instead, particularly in view of a recent award in court? Are the numbers likely to choose the route of the redress board under review in the Department?
Returning to Mr. Boland's particular territory, his presentation and the miscellaneous regulations, it seems that the intention originally was that this would not be over adversarial and that therefore more people would be encouraged to use the redress board rather than the courts. What is the procedure envisaged by the redress board for people against whom accusations were made? Is it cross-examination? To what extent will it be adversarial or will it differ to what might happen in court where somebody chooses to defend his or her name? I stress I fully accept a person's right to defend his or her good name.
My main concern is one which I think you would rule out of order, Chairman. It is the question of what is in the deed of indemnity whereby the religious congregations are indemnified in the case of claims in court. I have it before me here but I do not want to quote the whole lot. Because of the extent of that indemnity, do the officials consider it is likely that people will feel that they have a better chance by going to court than going to the board?
I do not want to appear, from the tenor of these questions, as if I am encouraging people to go to court rather than to go to the board. Many people would feel that the opportunity to go to a board like this, in a non-adversarial context, is one which they would prefer to take. Nevertheless people will assess the matter on the basis of the information they have.
I would have thought that Deputy Michael Woods, the former Minister who was involved in all this, might be helpful to the committee and I do not know whether it is possible to ask him if he would like to come and speak to the committee or to the Minister for Education and Science. Many of these issues relate back to decisions made in advance of the Act. I respect the fact that it is now an Act of Parliament, but nevertheless these issues will be relevant to the operation of the board and therefore they are questions which should rightfully be asked and answered, probably by the people who have political responsibility rather than by the officials of the Department who are here today.
I will allow the question about the matter of procedure before the board and the question on section 16, which is obviously a matter for this committee. Some of the other part clearly strays into the area of contingent liability, which is the business of the Committee of Public Accounts, but I will allow an answer on whether there was a policy change. Beyond that, assuming that the answer is yes, it becomes the business of the Committee of Public Accounts in my view.
Mr. Boland
Chairman, thank you for the guidance. If I seem to be straying perhaps you will haul me back, although I suspect the Deputies and Senators will feel there is very little danger of that. I suppose I am inevitably in a bit of a dilemma here in that, both personally and professionally, I want to be as helpful to the committee as possible and, on the other hand, I and my colleagues have come here today to talk about quite a narrow, although important, issue to do with the regulations and issues relating to the indemnity agreement between the State and the religious congregations, which are by and large policy issues. As far as I am concerned, the indemnity agreement has been made and that is a reality. It in no way impacts upon the regulations or, indeed, the operation of the redress board. The Act, the redress board and the these regulations would almost certainly have been in place with or without an indemnity agreement. It is an area which is not within my province this morning but I will try to be more helpful on some of the other issues.
On the issue of numbers, not wishing to get into contingent liabilities etc., there is a direct question which I can answer to some extent, which is, who assessed the likely numbers and what is the likely take-up. Work on this area has been and will be extremely difficult because, short of having a crystal ball, you cannot look into the future, but there was reasonable scientific basis - if I could use the word "scientific", which is somewhat nebulous - for making calculations in this area. There are two very firm figures which the State can look to in having regard to what will be the likely number of cases before the redress board. They are the number of cases at present down for hearing or threatened in the High Court and the number of cases before the Laffoy Commission. On the latter point I stress there is no connection between the work of the Laffoy Commission and the redress board, but it gives an indication of the numbers of people who are sensitised to and conscious of the issue of their abuse in childhood.
The figures for High Court cases are in the order of 2,500 and the figures for the Laffoy Commission are roughly comparable - they are in the order of 3,000. Those are the only hard figures and those are ones which are extant today, four years into the Government's programme of initiatives regarding child abuse. They may well increase, and I suppose it is likely they will, but they are the hard figures as of today.
We do not know whether the take-up of the board awards will happen. However, it would have been very unwise to go down the route of setting up the redress board if it was not intended to set it up in a way which would encourage people to use it. The expectation in the Department, therefore, is very much that the vast majority of cases will go to the redress board for the important reason that the Ryan committee specifically set out to lay down award levels which were consistent with what people could expect to get in the High Court. There is relatively little advantage for people to go to the High Court and there is considerable disadvantage to go from a low threshold, non-adversarial system to a system where they have to prove just about everything. There is no expectation that the redress board will become redundant in that sense. As for recent media attention to a particular case, the facts as originally reported were obviously entirely wrong. The amount for which it would appear that particular case settled is well within the guidelines set down by the Ryan committee and, it seems, has no particular implications one way or the other for the take-up of the redress board.
On the Freedom of Information Act, I will not comment on that other than to say that clearly a decision has been made. There is a mechanism under the Act for internal review, but I do not know whether such a review has been sought yet. There is a further mechanism for review of the decision by the information commissioner. The issue there is that information, to which people are entitled by virtue of the Freedom of Information Act, will be made public through one or other of those systems even if it is a matter of the commissioner making a ruling. Therefore there is a process.
I am not too sure about the issue of a review. I am not aware of any provision in the Act which allows for a review of the whole Act. I do not expect there will be a wide-ranging review or amendment of the legislation. There is no such plan at present.
The Deputy's final point related to the board being non-adversarial and how that balances with congregations or individuals coming forward to put their side of the case. There inevitably will be some element of the adversarial about it. As I understand the intention of the legislation, it was that a person against whom accusations have been made could give written evidence and then if the board thought it was appropriate in the interests of justice, he or she could be allowed to cross-examine and give oral evidence. Following the outcome of that process, unless the board is entirely satisfied one way or the other, where there is a conflict of evidence that the board cannot resolve, then the matter will be determined entirely on the medical evidence available. If applicant A says "I was abused by B" and B says "It didn't happen for these reasons", in most cases the board cannot reconcile that because of the passage of time and will look to the medical evidence and if that supports applicant A, without any finding of fault in relation to the alleged perpetrator, an award will be made.
The intention is not to focus the redress board on the facts of what happened because in the vast majority of cases that is too difficult to establish but to look at what is alleged to have happened and look to the medical evidence. If that supports the alleged abuse, an award is made. That is why the board has a low threshold and why it should be and is expected to be attractive to applicants.
Apart from the issues relating to indemnity, I hope I have answered the other questions and that members understand the question of discussing the indemnity agreement.
I must go to the House but I have one final question. I refer to the speed with which matters will proceed. I have received a number of representations in this regard, as have other members, from people who are in failing health and are concerned about the implications of that in terms of their hearings.
Deputy O'Sullivan took the Chair.
I refer to the indemnity agreement. I received advice from one legal person that the indemnity that has been signed could be unconstitutional under Article 44.2 where the State guarantees not to endow any particular religion. This has nothing to do with figures. Did the Department obtain legal advice on that at the time to establish whether it was in conflict with that constitutional provision? I acknowledge it is open to interpretation and one will obtain different advice from different legal experts. Did the Department or the Minister of the day receive advice from the Attorney General on that issue?
Yesterday's revelation that the Church took out insurance against clerical sexual abuse as distinct from institutional sexual abuse, although they overlap on occasion, makes the indemnity more questionable. One can insure one's car with five or six different companies but it is illegal to make more than one claim. The Church has obtained a double insurance policy through the payment of the indemnity by the State and another indemnity through an insurance company. I do not know whether Mr. Boland can comment on that but it leaves open many questions.
I refer to the regulations. With regard to legibility of applications, will a provision be made to assist people making applications? Different forms of abuse took place in the institutions, one of which was the lack of provision of education. The victims in many instances were not given an education. They are being asked to submit an application form that is typed or legibly handwritten even though some may not have the necessary skills. Others may not have the financial wherewithal to obtain legal advice or take on a solicitor to assist them with their applications. Where do they fit under that regulation?
I do not agree with Mr. Boland that the redress board is non-adversarial. The provision of legal representation and the facility for cross-examination means that hearings will become adversarial, although I accept it may be necessary but there is no way around that.
Under the guide published by the redress board, which is based on the regulations, it is a function of the board to make persons who were residents of institutions listed under the Act aware of its existence. The list of institutions is extensive but I have been made aware of people who are to take claims against institutions that are not listed. An extensive advertisement campaign has been undertaken but is there another way to make people aware who may not have been resident in the specified institutions so that it is ensured during the lifetime of the board that everybody who needs to avail of its facilities will be given an opportunity to do so.
My greatest problem with this issue is that the applicant must give a short summary of his or her application to the board together with a more detailed outline of his or her case. The relevant person will be entitled to request of the board a copy of the application in full. The different forms of abuse can be discussed. From an abuser's perspective there is an issue of gratification at the time the abuse was perpetrated. Another issue relates to whether the handing over of the application re-perpetrates the abuse or puts the abused person through the abuse again because he or she has written down everything that happened to him or her and it will be provided to the abuser. That puts the victim through the entire ordeal again. I do not know how to get around that or how the redress board will decide in which instances the information will be supplied. All the information does not have to be passed on.
The specified relevant person is the institution. Some institutions have closed. Who will deal with the cases in the institution? Will it be one person or will the statement be readily available? There are issues in this instance in terms of protecting the victim and the relevant person, who may not have done anything. There is a double risk in terms of it becoming public knowledge. Will Mr. Boland comment on these issues?
I refer to cases where there is a conflict between the evidence given by the applicant and that given by a relevant person. Under the regulations where it cannot be resolved to the satisfaction of the board, it will request its medical adviser to prepare a report on the injuries received by the applicant as a result of the abuse. If there is a conflict in evidence, that relates to fact. How can the medical adviser answer a question of fact? I do not see how that can happen legally. The medical adviser can give evidence about the effect the abuse had on the victim but he or she cannot provide an answer regarding a finding of fact in terms of when it occurred. This provision is open to question and it could create difficulties for us down the line.
If the person making the application gives false information there is a facility available to the board to have him or her indicted and convicted of perjury. On the other hand, if the relevant person or the specified relevant person commits the same offence - except it will not be an offence because there is nothing in the Act to penalise these people - this will be a significant contradiction. I do not know if the regulations can address this. It seems a significant contradiction and unfair that the applicant can be convicted of perjury but the specified relevant person or the relevant person cannot be convicted.
Mr. Boland
On the indemnity agreement, I cannot comment on the insurance situation of the congregations. In regard to constitutionality, I operate on the basis that the Government acts constitutionally. The Deputy raised a number of practical points with which I think I can deal reasonably well. On the issue of legibility, the Deputy correctly pointed out the difficulty people might have with what I accept is a complicated and lengthy application form. The advice of the Department to applicants to the redress board is that they should have a legal representative. The fact is that all legal costs will be paid by the board. Our understanding is that the overwhelming majority of people who have come forward with an interest in this area have legal representatives at this stage. It would be our strongest advice to people going to the redress board to have legal representation to help them through the process and, crucially, to advise them at the point when they must make a life-changing decision to accept an award made by the board or not to accept it and sue through the courts. Legal advice is vital and, as I understand it, solicitors for applicants are giving a lot of support to people in preparing their applications.
On the question of whether there will be some adversarial element to the process, it would be difficult to have a process which would pass constitutional muster where someone is making a serious allegation about someone else and he or she is given an opportunity to say it did not happen. There will be some adversarial element about that. However, given that the redress board, in a situation of conflict, will be statutorily required to rely on medical evidence, it seems to me that the number of people saying it did not happen will probably be relatively small, because there will be little to be gained by going forward if the medical evidence supports the point of view of the applicant. Where an accused person comes forward, there will be an element of stress for the applicant. This is unavoidable to the extent that it will happen.
On other institutions not now scheduled, the intention of the Government is that people should not have to go through this again, that this is a once in history opportunity for people who were damaged by their experiences in institutions to get reasonable compensation. Therefore, we hope every institution which qualifies under the Act will come forward at this stage. While some institutions are not scheduled, the Act provides that there will be a further order scheduling other institutions, once they pass the test that they are institutions in respect of which public authorities had regulatory and supervisory functions. An order is currently being prepared.
The relevant person and specified relevant person will not automatically get a full copy of the application form. The regulations currently provide that the address, medical report and photograph will be given only in situations where the board believes the interests of justice require it. In that context, I would like to point out that the Minister and the Department are considering, in consultation with the board, making a short amending regulation in this area. We consulted widely with the survivor organisations and legal representatives in drawing up the draft regulations. Since they were drawn up, however, representations have been made to us that there should never be a circumstance where a photograph or the address, for instance, is made available. As the Department has some sympathy for this view, it sought the advice of the boardand may make a short amending order on that point.
In regard to the relevant person getting the full statement of abuse, I do not think there is any way round that because of the requirements of justice. If a person is accused of abuse, that person must know what he or she is being accused of. This inevitably means getting the full statement of what the person said happened to him or her, but not the full application form. It appears they would probably get the full statement of what happened.
I understand where Mr. Boland is coming from but is it correct that a person must outline in the application form the effects the abuse had on him or her, including how he or she had to adjust afterwards?
Mr. Boland
No, that is more by way of the medical evidence which will apply in medical reports. This will be provided to the other side only in exceptional circumstances where the requirements of justice demand it. It will not be common practice to release medical reports and it will be done at the discretion of the board.
On the question of institutions which are closed and who the specified relevant person is, if there are instances where one cannot find a specified relevant person or a relevant person, then that is that. There is no requirement on the board to go to extraordinary lengths to find the people concerned. It is only required to do what is reasonable. If there is no one around, so to speak, that will be the end of the matter as far as giving a relevant person or a specified relevant person an opportunity to respond.
Conflict and whether the matter would go to the medical personnel was raised. The intention is that the medical personnel will have nothing to do with deciding which statement is correct and which statement is incorrect. They probably will not be aware of assertions made by an alleged perpetrator that something did not happen. They will not get that information. They will get a statement of the abuse of the applicant and his or her medical reports. They may conduct a medical assessment. If on the basis of these reports and-or a medical assessment they conclude that the injuries the person exhibits are consistent with the facts in his or her statement, regardless of what has been said by anyone else, then an award will be made. That is why I said the threshold of proof is very low. One does not have to prove the facts of abuse at all. Clearly if one came in with a ridiculous story, I am sure the board would be able to identify that. However, one does not have to establish the facts. Once the alleged facts are consistent with the medical evidence, and that is confirmed by experts for the board, then an award is made. There is never a situation where the medics will decide on the facts.
On false information and perjury, it is correct to say that the Act provides only for perjury in the case of applicants, which seems a little unfair. Perhaps it is, but that was not the intention. Ultimately, a dispute about facts is neither here nor there if the medical evidence supports the applicant. There will never be a situation where the board will delve deeply into the facts put forward by an alleged abuser. Therefore, there is unlikely ever to be a situation where one could establish perjury because there will not be an inquiry to determine whether the person was telling lies. That is, of course, unless it was something blatant. There is always that prospect. It was felt that it would not be necessary to provide for perjury for the relevant person because of that. We did not anticipate it would happen or be relevant very often. However, if there is amending legislation in this area soon, either in relation to the commission or the redress board, it is something the Minister will consider. It could not be done by regulation because it effectively creates a criminal offence. That can only be done by legislation. If only for the optics, it is worth considering. However, it is more an optical issue than a real issue.
The next members to speak are Deputy Mulcahy, Senator Minihan, Deputy Gogarty, Deputy Andrews and Deputy Stanton.
I thank the representatives for coming before the committee. I wish to discuss the regulation that sets out the various points for compensation. This is the first time, other than in hearing loss cases, that an actual schedule or scale has been set out under various categories. The normal approach of the courts, and some State compensation boards, has been to award general damages for pain and suffering to date and general damages for pain and suffering into the future. Then there are special damages for particular loss.
It is interesting that in Schedule 1 there are four different headings for the awarding of points in terms of compensation. It will be interesting to see how the various board members and the review board assess points on a case-by-case basis under those headings. I pay tribute to the people who worked on this. I know Seán Ryan, SC, who, I am sure, had a significant input into it. It is no mistake that the cap appears to be €300,000. The Supreme Court has set out a maximum that can be awarded for general damages and I believe it is about that figure.
Paragraph 5 of the regulations deals with exceptional cases. If one gets 100 points and if, in the opinion of the board or the review committee, it is an exceptional case, a larger award than €300,000 can be made. I am a little worried about the use of the word "and" in 5(a). It is possible that somebody might score less than 100 and yet be an exceptional case. It would appear that he or she would be excluded by these regulations. Somebody might have experienced, for example, severe abuse and got 25 points in that category. He or she might not have been very traumatised or made sick by it but might have suffered a terrible loss of opportunity so he or she only scores 60 or 70. I might be seeing difficulties where none will exist but the positive aspect of setting out categories has the negative side of limiting the discretion of the panel in making the award.
Consideration should have been given to substituting the word "and" with the word "or" in 5(a). One can take another example. Where somebody suffered under categories 2 or 3, medically verified physical or psychiatric illness, psycho-social sequela, but did not suffer severe abuse or did not suffer any loss of opportunity, he or she would be debarred from getting a maximum award. Will the officials look at that? It appears to limit the flexibility of the panel in making an exceptional case award.
Mr. Boland
The board, in common with others, was closely consulted about the regulations and had no difficulty with this one. I can see the Deputy's point but our sense is that an exceptional case must, at least, pass the hurdle of being at the highest level of weighting. There is sufficient capacity within the ratings schedule to bring it up to the maximum and the board has that flexibility.
The Deputy mentioned, by way of example, somebody who was not traumatised but suffered terrible loss of opportunity. Loss of opportunity, as the Deputy will be professionally aware, would be extraordinarily difficult to establish, particularly in these cases. We are talking about people who, in many cases, came from disadvantaged situations, went into even more disadvantaged situations and then led disadvantaged lives. Whether they would otherwise have become senior counsel, judges or civil servants would be impossible to gauge. The intention was not to diminish people's access to compensation but to provide for the upper limit and then to provide scope for departure from that in exceptional cases. There is also the capacity for 20% additional award in the context of aggravated damages. That allows the board to take into account the individual circumstances of the case.
I see the Deputy's point. That is our reason for the regulations.
I welcome the delegation and thank its members for the work they have done to date. I wish to discuss where the Act might possibly be in conflict with the Succession Act. My concern relates to where a survivor dies before an application for compensation is made. Section 9 of the Act deals with deceased applicants and provides that a spouse or child of a deceased applicant can make an application for compensation on behalf of that deceased person. Section 1 provides that the word "spouse" includes a person with whom the person is or was at that time cohabiting. There is no definition in the Act of the word "cohabiting" but there seems to have been an extension of the meaning of "spouse".
Section 9(4) of the Act provides that compensation will be paid to the personal representative of the deceased person and that the compensation will be seen to have been paid before the death of the deceased for the purpose of administration. The personal representative has a meaning assigned to it, in accordance with section 5, and it is the same meaning as assigned under the Succession Act. My concern arises because I believe there is a contradiction. A cohabitee, in accordance with the Act, is fully entitled to state and make a claim. However, if the person is deceased the method of payment of that claim will be in accordance with the Succession Act and it will, inadvertently, fall upon the spouse and form part of the estate. Therefore, the person entitled to make the claim may not necessarily be the beneficiary in accordance with the Act. The simple way of overcoming this is to provide that claims made which fall due for payment should not form part of the estate, but should be paid directly to the claimant. If this is not done the Succession Act will have to be amended. I do not believe that was the intention.
Where a survivor is a bachelor or a spinster and dies intestate without children but a known next of kin who has been living with a cohabitee, then under the Act, the spouse is allowed to apply for compensation on behalf of the deceased's survivor. The compensation is then paid to the estate of the deceased person and is payable to the legal personal representative. The normal rules of distribution on intestacy will be applied and the compensation will be divided among the next of kin. That is surely not what was intended by creating a new definition as to what is meant by the term "spouse" and when a cohabitee was recognised. However, if the compensation is paid to the spouse without forming part of the estate the problem would be overcome because the cohabitee would get it.
Should the deceased bachelor or spinster have children from a former relationship and has another partner at the date of death, which spouse is allowed make the application? Many kinds of applications could be submitted from different kinds of spouses. If the person dies testate and his or her will makes provision as to who he or she wishes the compensation to be paid, but is without a spouse or children, then according to the Act no application can be made on his or her behalf. This means that, say, a bachelor could make a will and specify that he wishes his sister to have whatever compensation he is awarded, yet nobody can apply. If he has at one time lived with his sister in a house, is she to be seen as a cohabitee?
Where the deceased is testate, is a bachelor and has a spouse, but does not refer to her in his will, she can apply for the compensation. It appears from the legislation that the compensation would form part of his estate and be distributed accordingly. Again, if this compensation is seen as not forming part of the overall estate because it is not specifically mentioned, it could be paid directly by the cohabitee and dealt with under a limited grant of administration.
In an effort to reflect modern living, the Act extended the definition of the term "spouse" to cater for cohabitees but in doing so it conflicts with the Succession Act. Rather than address that aspect, with its consequent legal arguments and claims, consideration should be given to making the payment directly to the claimant and not through the means of probate.
I am not sure if the question is more concerned with the legislation rather than the regulations. Perhaps Mr. Boland will answer it.
Mr. Boland
It is largely concerned with a factual interpretation of the legislation. The intention of section 9 was to address the valid argument that a person who suffered abuse in childhood and who suffered damage as a result almost invariably, certainly very often, transfers that damage to those to whom he or she is closest, typically those with whom he or she lives, be they spouse, partner or children. An argument was made that they should also be compensated but that raised the question of how far the State's responsibility for compensating people can go. It was considered that it should not go that far. However, the then Minister and the Government considered that there was justice in the argument that in many cases children and spouses or partners of people who were abused suffer as a result of what happened when the parent or partner was a child. An attempt was made to address that.
I am aware of the kinds of issues raised by Senator Minihan and they are being looked at in the Department. Section 36 of the Act provides for the power to remove difficulties. It is one area where a further regulation, which would in due course be presented to the Oireachtas, might be made to try to address any practical difficulties in this matter. The intention is to try not to create a situation where a person who dies before getting compensation can bequeath it to anybody, but rather that it could only happen in a situation where the compensation would go to those most likely to be most affected by the past abuse. If we can achieve that outcome through regulation resolving difficulties we will do so. It is something of which we are aware and the record of this meeting will provide further elaboration of the issues. We are working on it.
I thank the witnesses for attending the committee and giving their time to discuss this vital issue. I am aware some will also attend the other committee. I have a number of questions, some of which may be beyond the remit of this meeting. Perhaps the delegation would indicate if it can provide an answer to them.
An independent compensation advisory committee was established by the Minister for the purpose of setting out the constituent elements of redress, including the weighting aspect and so on. I have been unable to ascertain the membership of the committee, although it may be in the documentation provided. What are the terms of reference in appointing it?
Concern has been expressed about the 1 to 15 weighting allocated to loss of opportunity. What is meant by loss of opportunity? Richard Branson started his business career from a telephone box at the age of 15 and went on to become a multimillionaire. It is difficult to gauge how a person would have developed had he or she not been abused. Michael Jackson is an example of a person from a wealthy background who was abused by his father. I will not comment on the reaction to his television interview, but his childhood abuse has affected him. A person from a disadvantaged background who was found to have been abused in an institution may have been able to rise above the disadvantage had he or she received a full education. Given that it is so subjective, what was the thinking behind providing for loss of opportunity with a maximum weighting of 15? Would it not have been better to increase the allocations for other areas? A subjective opinion is not sufficient when considering a person's future and the size of his or her award.
Section 33(5) of the regulations provides that settlements will also be considered to be awards. What proportion of potential cases that may be settled will be decided as settlements rather than on the basis of oral evidence? Is there an educated guess as to what proportion of a settlement would be decided on the consideration that oral evidence was not provided? The oral award would generally be paid as part of a settlement because when a person does not have to give the information and go through the trauma, be subject to questioning and so on, that is in itself something worthy of compensation should they be found to have been correct. Is there a certain amount of reduction in general terms in relation to settlements and just a general observation as to what proportion you expect to be settlements?
If people were encouraged to go down the settlement route knowing they would not lose too much in terms of an award it would speed things up and save money to the State. I have general questions which I am not sure are within this remit or that of the other committee. I do not want to go into the indemnity per se but would like a yes or no answer. I am trying to get behind the thinking. Do you know if it is true that Ministers were told last July that €500 million would be a more accurate estimate of the Churchs requirements?
In relation to legal representation for the religious orders, did they advise, as was reported in the media, that their maximum liability was €40 million to €50 million? There is a legal view, alleged to have come from the Government side, that if compensation was paid to the victims the Church would end up with nothing and there would be issues in relation to the charitable status of many of the institutions. Some legal sources query this. How much discussion took place in relation to these issues? According to reports in today's edition of The Irish Times, “the Government is refusing to release for than 140 documents.” The Freedom of Information Act aspect of this was touched on earlier and, as was said, some of these issues may come out in future but we do not know whether or not the information commissioner, for example, will decide this information should be released as there is no guarantee in that regard. Do the Clerk of the Committee or the Chairman know if there is a legal power for this committee to request such information and does it have to be handed out even if it is in camera, so to speak? I am interested in getting some of the information. Some of it may be commercially sensitive as the Department of Education and Science might say, but there is still a need for it to be clarified. My colleagues from the Green Party and I are generally concerned about the issue of freedom of information and believe it should more resemble the Swedish model with as much information made available as possible. If there is an argument as to whether something is commercially sensitive, let us open it up to this committee which might be able to pass on guidelines. When up to 140 documents are withheld, it raises questions of Government cover-ups. That may be totally false, but in the interests——
I have already been told on my questions that the freedom of information questions were not particularly relevant.
In relation to how the Residential Institutions Redress Board was set up——
The issue is not within the remit of the committee today.
As we recall, this was set up before the new Government took office, the day of the Ireland versus Germany game in the World Cup. There is a question as to whether the Cabinet went through this in detail or not and if we do not provide enough relevant information, the redress system will be tainted. For that reason, I am looking for clarity.
On the question addressed to the clerk, we will need to seek the legal advice available to the committee so we will defer that for the moment. Mr. Boland can answer some, though perhaps not all, questions.
Mr. Boland
I am sorry I have to do so but, regarding the indemnity, I am not at liberty to talk about it today. I am here to talk about the regulations and will do so in as much length and explanation as I can. The Ryan committee, if I can call it that, published its report in January 2002. It set out much of the information the Deputy seeks. The chair of the committee was Seán Ryan, Senior Counsel and the other members were Dr. Helen Comiskey, a consultant psychiatrist in adult, child and adolescent psychiatry, Dr. Marion Gibson, a consultant director of staff care services from South and East Belfast Health and Social Services Trust, a consultant in psychological trauma management and a member of the Northern Ireland criminal injuries review group, chaired by Sir Kenneth Bloomfield between 1998 and 1999. Another member from Northern Ireland was Professor Desmond Greer, professor of common law at Queen's University, Belfast and he was also a member of the Northern Ireland criminal injuries review group and has much experience in relation to compensation schemes around the world. The final member of the committee was Professor Martin McHugh, then a recently retired professor of psychology from the National University of Ireland in Galway.
Deputy Killeen took the chair.
I originally asked a supplementary question. I did not have the information to hand while I was asking but who decided the make up of that board?
Mr. Boland
That was provided for in legislation.
Were there no recommendations made by ministerial staff?
Mr. Boland
The Minister acts through advice so it was his decision. There was official advice on who would be on the committee. I will not read the terms of reference because they are lengthy and are set out on page 5 of the report. The key one was to consider how financial awards could be determined in respect of abuse and its effects and to provide a report. That report is available and we can give the Deputy a copy if he wants one.
The report addresses loss of opportunity. It is extraordinarily difficult to determine and in a High Court context would probably involve at great length and expense much actuarial evidence and ultimately come down to guess work anyway. The report states:
Lastly, there is loss of opportunity to which we assigned a maximum of 15, not because it is unimportant, but because it is included to some extent in the previous category - the psycho-social sector of injury. It should feature in our view to a lesser degree than the other elements.
That was the recommendation of the Ryan committee, which was followed.
Regarding settlements, what proportion would be settlements and if there was a penalty if a case was settled, it is a matter for the board but, to the extent that I have had discussions with the board and I understand what they intend doing, there is no question whatever that an applicant would get less in a settlement than in a full oral hearing of the case. It would be damaging to the process if that were the case. My understanding is that the board, in putting cases forward for settlement, would put the offer they think is reasonable on behalf of the board. There will be no shadow-boxing about this and there is definitely no intention that a settlement would get a lesser award than a full hearing.
It is the hope that the vast majority of cases would be dealt with by way of settlement because otherwise the process of making awards will be incredibly delayed for those at the end of the process. Even taking 2,500 or 3,000 applicants, number 3,000 would not be heard for several years if every case went to oral hearing. The intention is that several hundred cases would be dealt with each week through a settlement process which would be a much more straightforward, almost production-line operation of getting cases in and out and dealt with. Apart from the issues dealing with indemnity, that answers the questions.
I welcome Mr. Boland and the delegation to the committee and thank them for their presentation. It is useful in the context of the issues of the day. It is my understanding that in a system set up of limited liability where proof of negligence is not required at the usual standard, there is normally a payoff whereby the awards given are accordingly lower in line with the lower standard of proof. Does the delegation share my view that this has all been discussed in the context of what happened last week and all the bans of redress bar one are within the High Court jurisdiction? This is a fairly generous scheme. It is not overly generous but is fair given this is a system of limited liability.
There was an element of aggravated damages in last week's settlement and if it was factored in one would be talking about a settlement of less than €300,000, given that 20% extra is available for aggravated damages in the board. Deputy Enright mentioned endowing another religion under the Constitution and my view is that a binding contract has been arrived at by the State. I do not see how it could be described as an endowment on another religion. In fact, some would argue giving €120 million to the Church, given that it acted as an agency of the State, is going the other way. Does the delegation share that view?
I do not think I can allow a view on the latter part of the question. The remainder is fine.
I welcome the delegation. This is a very important issue and I congratulate them on the work they have done. My sense is that a lot of work and thought has gone into this from many people. It is important we get this right and that this committee does its job overseeing and testing the regulations.
Something jumps out at me from the regulations dealing with section 10, which state that save where expressly provided for by the regulations under the Act, any document to be served by or on behalf of the board may be served on an applicant or any person by ordinary prepaid post. Why is that in the regulations? When dealing with such a sensitive issue we must be careful that everything is done as confidentially as possible. The least we require here is registered post as these documents should be served in such a way as to ensure they do not fall into the wrong hands. That seems extremely loose in the regulations. Everywhere else registered post is mentioned, which obviously is a safer way of transferring sensitive material, and I cannot figure out why this provision is here.
Deputy Enright mentioned the problems of those who suffered terrible abuse in institutions and did not receive an education. Such people might not be able to read and we now also know that people with dyslexia, dyspraxia, ADD and so on were sent to these institutions. We have recognised those now as learning difficulties but then those people were sent there because society felt they were unmanageable. Other citizens may be mentally handicapped and lack the wherewithal to contact the board. What provision has been made to assist these people in making applications?
What will happen to the evidence to be gathered by the board - documents and so on - in terms of data protection and confidentiality? Who will have access to that information? I do not know if I am straying into a different area but how would criminal proceedings which are initiated fit into this scenario?
Section 33 deals with costs and expenses. What provisions have been made in that regard? Costs and expenses have been a major issue in tribunals, so what provisions have been made to limit those? I am not sure what disbursements are either, so perhaps the delegation could explain them. There is a reference to costs incurred in consultations and conferences. The delegation should explain the different forms of conferences and what is envisaged here.
The other regulation dealing with section 17 refers to the fact that the board making an award or the committee reviewing an award may include an additional award for reasonable costs of medical treatment and so on. That is obviously in addition to the award and it should be clarified.
Part 6 of the regulations refers to reasonable expenses of medical treatment which the applicant has received. What kind of proof is needed? What would be accepted? The regulations make no reference to that and it might be difficult for someone to prove they suffered abuse years before. How will that operate?
Has the establishment order been published in Iris Oifigiúil? Was the board be in operation before 16 December? Has the Department been able to fund any of the victims’ groups to date? Also, if an award is settled, does that mean the applicant loses the right to go to court if he or she is unhappy with the award received?
I welcome our visitors and compliment all those involved in this thought provoking matter and on their work on the Act. The opening statement of the Act states it applies to people whose children were resident in various institutions. I wonder why children are specified. Adults must also have been subjected to abuse. Obviously children were vulnerable but why has this been made specific to children?
Regarding the role of the board and the rights of the accused, our documents state that part 3 relates to the process of informing people against whom allegations are made. I failed to find the information, given all the documents here, but is the board obliged to inform those people? In the event of the accused being deceased, is the applicant's word accepted? What kind of procedure applies in that case? How does a settlement come about? As Deputy Stanton asked, is the applicant finally offered a figure, is there much negotiation or is he or she just given a figure under the Act given the evidence presented?
Mr. Boland could not answer my question so obviously he cannot answer Deputy Andrews's question either. When I asked about the constitutional provision I was not saying it was one thing or another but I wondered who made the judgment call as to whether this was in concert with the Constitution. Obviously the Government is bound by the Constitution, which supersedes any contract made in any event, but who made the call and who decided it was or was not in conflict with the Constitution?
Fair enough. That completes this round of questioning. The only other issue, which may have been answered in my absence, was interim payments. They may be covered but I do not know where in the Act.
Mr. Boland
I will not give legal advice to the committee. The reality is that when the Government makes decisions it is advised by the Attorney General concerning the issues. If I do not answer all the questions remind me of them.
Deputy Andrews mentioned the matter of the High Court versus the board and if I understand him correctly, the fact that there may have been a sense there was some form of discount because of the low threshold of proof at the board over High Court awards. The Ryan committee addressed that issue specifically in its report which stated:
The committee considered whether there should be some allowance by way of reduction of awards because applicants will be spared the uncertainties of litigation, including the procedural and legal difficulties discussed above. [That has to do with the statute of limitations and various other issues.] Such an approach was rejected because there is nothing in the Bill which would justify such a reduction and also because it would be wrong in principle. "Awards made under the Bill are to be fair and reasonable, having regard to the unique circumstances of each applicant." Furthermore, the package of measures of which the proposed redress scheme is part [and that included the counselling and the Laffoy commission] would be undermined by an approach to the assessment of awards which provides for less than the proper entitlement of each applicant to the award.
It is an important principle of the redress scheme that the Government could have introduced a scheme in which, because we are taking away all the procedural difficulties and hurdles of delays and so on, we will reduce the awards by a certain percentage. That was not done and, as the scheme is devised, the intention is that people will receive the full award they could have expected to receive in a High Court case.
Deputy Stanton raised many issues. Regarding prepaid post, it is merely a question of convenience for the board. I notice that in relation to several important issues the board has to serve notices by registered post to applicants so it is something we could take up with the board. It is just a matter of flexibility.
Regarding those with mental handicap or other mental disabilities, that is a real issue for the board. The board is guided by the legislation and is obliged to reach out to as many people as possible who may have suffered abuse and to find a way of compensating in this once-and-for-all approach to compensation.
Section 28 provides for documentation, the role of data protection and confidentiality. It specifically provides that the board may make information available to the Garda where there is an anticipated threat to the life and safety of a child. The issue raised by the Deputy in that regard is covered there.
Regarding costs and expenses, the intention is that all reasonable costs and expenses of an applicant, including legal costs, will be met by the board. Any dispute will be decided by the Taxing Master of the High Court, which is the normal course of events. "Disbursements" is one of those antique legal words which is used and I presume it just means expenses. We can look it up in the dictionary but it has no specifically interesting meaning. Medical expenses will be additional to what I would term the basic award. Regarding past medical expenses, it is unlikely that anyone will have kept the receipts from psychologists or doctors down the years. In many cases, however, medical records will have been kept and it would be quite possible for appropriately trained people to look at those records and estimate how much is involved in ballpark terms, enabling an award to be made along those lines. There will have to be some form of objective validation of past medical expenses - there will have to be some accountability in that regard - but that is how it will have to be done: the records will be examined to see how they support the costs claimed. I do not have a problem with issues which do not arise regarding the regulations but which relate to the legislation.
As for the establishment day order, we have put in train the mechanisms to make this a statutory instrument, though I am not sure if it has become one yet or not. That process has been in train since this was brought in. The redress board was never set up on a statutory basis prior to the order. It could not be. It was, however, set up on an ad hoc basis in order to make arrangements and preparations for its formal establishment. That is perfectly reasonable in order to get staff, premises and so on, but it did nothing of a statutory nature or which would carry over into the period when it became established on a statutory basis.
The Department provides funding for survivor groups through the National Office for Victims of Abuse. They provide a valuable social, information and support service to victims of abuse. That will continue subject to normal Government accounting procedures.
Deputy Hoctor raised the issue of children and adults. The reality is that nobody claimed the Act was going to solve every problem involving abusive situations in Irish society in the recent past, distant past or the present. The sad reality is that there are all sorts of bad situations for people. This measure is aimed at children who would be regarded as particularly vulnerable, children in institutional care for whom the State and Irish society, it is argued, has a special responsibility. It is correct that this does not deal with adults. Whether there should be a measure to deal with adults is a matter for another forum.
Regarding the deceased, the board can contact a specified relevant person. In the context of a religious order it would be the order. If the person is deceased and there is no story to put from the other side then that is the reality of life and the process of making an award continues.
How are settlements to be made? We have been asked if people are to be given a figure on a take it or leave it basis or if there is to be some element of negotiation. It is expected that there will be a considerable amount of negotiation. People will not be steamrolled into accepting awards and they will have legal advice. There will be a process of negotiation and discussion. Have I dealt with everything?
Interim payments.
Mr. Boland
It is a matter for the board. It will be making interim payments because it is obliged under the legislation to do so. The intention, in accordance with the Ryan committee, is that those payments will be made because of age, as people may be well over 60——
Or ill.
Mr. Boland
Or ill. All that will be required is that the board makes a preliminary judgment that the person has a case without ever looking at any evidence, including medical evidence. The board can make an award of up to €10,000. The Chairman asked how long it will take the board to get up and running.
Mr. Paul Kennedy
The board has five members at present, four ordinary members and a chairperson. It has 13 administrative staff and seven additional staff have now been sanctioned. It is a matter for the board to set out its procedures as to how it will hear cases but the Act provides that for reasons of age, infirmity or ill health specific cases can be brought forward. The board has the power to make an interim award also. We understand from the board that it may sit in divisions in order to hear more cases on a daily and weekly basis. The process of settlements should ensure that cases are dealt with speedily but it is a matter for the board to set out its procedures in this regard and to ensure priority is given to cases involving people who are old or infirm.
Mr. Boland
From the point of view of the Minister and the Department, we are absolutely satisfied that since its establishment the board is pressing ahead with all haste in getting itself up and running. It is absolutely committed to doing this as quickly as possible and is very conscious that many people are waiting desperately for it. We expect it to go headlong into its work.
Mr. Kennedy
I said the board had five members but there is provision for more members and we will be guided by the chairperson in that regard. The Department and the Minister are willing to facilitate the board if it wishes to appoint more members.
Deputy Stanton asked a question and I am not sure it was answered. He referred to people who might not be aware of the existence of the board or their right to make a claim and how they might be accommodated further down the line.
That could have been incorporated into the question but I was particularly interested in those who were mentally handicapped in some way and suffered abuse. Such people might not themselves have the wherewithal to avail of this. Their conditions could even have been worsened by abuse or neglect. They may not be able to read or may be unaware of what is happening and accordingly may need greater assistance than others; some may need major assistance. The expression "they will be reached out to" was used but what provision exists for that? Such provisions should be over and above the normal provisions of advertising in the newspapers and so on. I also asked about the use of material the board might come by which could be used in criminal cases later on. What would happen with such evidence?
Mr. Boland
I will take the last question first. Generally information that goes to the board stops with the board except in situations where it feels there is a risk to a child. Section 28 deals with that issue.
Regarding those with mental disabilities, I do not have an answer today for that and I may never have an answer, as it is primarily a matter for the board. The principle of the Act is that the board has a duty to make all reasonable efforts to inform people who were resident in these institutions of the functions of the board; that is in section 5(1)(b). It will obviously be difficult but from my experience in the last couple of years there are fairly tight networks of people who were in institutions together. For many of them it is the only family they knew and they keep in touch. There is a very sound knowledge of former residents of institutions who are still living in the system of former residents and their legal advisers; that network will be very valuable and is an area where victim support groups provide a good service. They have that information through their links and a lot of information can be disseminated that way. The principle is that everyone should know and the statutory position is that the board has a duty to make all reasonable efforts to make sure everyone knows. That is the best I can do on this matter today.
I thank the officials for being extremely helpful. There has been much information and disinformation in the public domain in the last few weeks but they have helped to clarify many of the issues. We have tried not to stray into areas which are more properly the remit of the other committee but the officials have been very helpful. I thank Deputy O'Sullivan for taking the chair when I went to the Chamber. Many colleagues managed to do the same thing simultaneously also today.
Deputy Gogarty asked a question on compellability which I could answer. The committee does not have powers of compellability but in certain instances would be entitled to seek such from the sub-committee which deals with this and subsequently through the Dáil, but unfortunately there is a large body of legal matter, particularly from the mini-CTC and Abbeylara inquiries, which does not encourage us to proceed along that route.
I will do my best to encompass the main points everyone has made but all parties would wish for a speedy and efficient settlement on behalf of those affected. We would like all who have a right to make a claim to have access to the board. The committee is cognisant of section 36 of the Act, which enables the Minister to remove difficulties. There is a one year limit on new statutory instruments which might prove difficult at some point. The committee would want to see any future statutory instruments which may arise as quickly as possible; the committee would also agree we ought to keep the matter under review with a view to recommending further legislation if that is our judgment.
I raised political decision-making and the balance of financial responsibility between the State and the institutions. Is there a way we can pursue that further?
In relation to the current Minister I do not doubt there is. In relation to former Ministers and Cabinet decisions I doubt we could but we can ask the legal adviser.
That is the nub of one of the issues.
It is more a question for politicians than for the Department officials. I thank the officials. We meet next week to discuss the State Examinations Commission Establishment Audit 2003.
The joint committee adjourned at 1.50 p.m. until 11.30 a.m. on Thursday, 13 February 2003.