JOINT COMMITTEE ON EDUCATION AND SCIENCE debate

Commission to Inquire into Child Abuse: Ministerial Presentation.

Chairman

This is a meeting with the Minister for Education and Science, Deputy NoelDempsey, to discuss issues arising from the resignation of Ms Justice Laffoy and the ongoing work of the Commission to Inquire into Child Abuse. The members of the committee have been circulated with a copy of Ms Justice Laffoy's letter of resignation and the Government's response.

I welcome the Minister and his officials to the committee. Before we begin, I remind members of the long standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the Houses, or an official by name, or in such a way to make him or her identifiable.

I understand the Minister will briefly outline the history of the situation to date. Members of the committee have indicated that they did not want to make long statements and wish to move on to questions as quickly as possible.

Minister for Education and Science (Deputy N. Dempsey)

I thank the joint committee for the opportunity to speak on issues relating to the Commission to Inquire into Child Abuse, the ongoing review of the investigation committee of the commission and the announced resignation of Ms Justice Mary Laffoy, scheduled to take effect in November.

At the outset, let me say that I greatly regret that Ms Justice Laffoy reached the conclusion that she could no longer continue as chairperson of the commission. I have previously indicated that Ms Justice Laffoy's resignation was a matter of considerable surprise to me and to the Government. I have expressed my thanks for the commitment Ms Justice Laffoy has shown in carrying out her role as chairperson and I am happy to repeat that appreciation to the committee. I am sure this committee will want to explore further the background to Ms Justice Laffoy's resignation and I am happy to assist as far as I can.

Notwithstanding Ms Justice Laffoy's decision, I have to emphasise that there is still a commission and an investigation committee in place, complete with its full range of powers and functions. There are still many hundreds of people who suffered abuse in childhood who are looking for closure. I and my colleagues in Government are fully committed to ensuring that victims of abuse are helped to find peace and healing in their lives, that those responsible for abuse are held accountable and that we learn lessons from the past.

The Government's policy response to issues arising from abuse in childhood essentially comprises of three strands - a statutory Commission to Inquire into Child Abuse, a nationwide programme of counselling, operated under the auspices of the health boards and providing a free counselling service to all victims of abuse in childhood and a redress scheme through which victims of abuse in residential care can get financial compensation. The Residential Institutions Redress Board administers this scheme.

The Commission to Inquire into Child Abuse has a dual structure to meet the differing needs of victims. The investigation committee carries out detailed inquiries, similar to trials, with regard to allegations of abuse. This is the part of the commission that is currently being reviewed and about which I will speak at greater length later.

There is also the confidential committee which hears, in total confidence, the accounts of abuse from victims who did not wish to have inquiries into their allegations. It is for the victim of abuse to choose which committee he or she wishes to go to. The confidential committee continues to function and has at this stage heard the accounts of over 700 witnesses - approximately two-thirds of all those who applied to that committee. The nationwide counselling service, set up under the auspices of the health boards, continues to operate and has not been affected by recent developments. The work of the Residential Institutions Redress Board, chaired by Mr. Justice Seán O'Leary, continues.

It is important to reiterate that this work is completely separate from the work of the Commission to Inquire into Child Abuse and that the board operates under a separate statutory scheme to that of the commission. The board makes financial awards to victims of abuse. The recent developments arising from the resignation of Ms Justice Laffoy will not affect, in any way, the payment of compensation. The only developments in the Government's initiatives in redressing the damage caused by childhood abuse that is currently under review is the investigation committee of the commission.

The reason for this review is that when the commission was established in 2000, it was the Government's intention that it carry out its work free of the adversarial environment and legal formalities of the courts and that it would be able to deliver its final report within two years. This is what was promised to the survivors but, as time went on, it became increasingly obvious that this would not happen. There were many reasons, but primarily the issue rests with the fact that, far from being a relatively informal forum, the investigation committee assumed the formality of the High Court, complete with teams of lawyers.

Following the final deadline for receipt of statements in July 2002, the commission indicated that the total of applications to the investigation committee was 1,957. It then became apparent that, given the rate of progress at the committee, if all of these cases were to be heard individually, the commission would not be in a position to deliver its final report for at least a further eight to 11 years. This timeframe was provided to my Department by the commission and was based on the resources that it had at that time. A report by the commission in that timeframe would be far too late for many of those for whom it was established. Concern about the progress of the commission was shared by survivor support groups who urged my Department to take action to ensure that the report of the commission be delivered as soon as possible. They made the point that some of their members had already been waiting 30 to 40 years for validation.

In addition to the long delay and the consequences of this for survivors of abuse, there was also serious concern that publication of the final report would be challenged by alleged abusers claiming that they did not have due process in a court of law. The likely delays, the doubts about the ability to publish a full report and the real probability that the State would have to pay legal costs of the order of €200 million contributed to need to review the investigation committee.

There are those who say that cost should not be a concern, that seeing justice is done is beyond petty considerations of money. Cost has to be an issue and having regard to it does not prejudice having justice done. What has to be achieved is a process which delivers justice effectively, efficiently, without undue delay and without exorbitant legal costs.

Once I had concerns about the operation of the investigation committee, it was my public duty to bring them to the attention of the Government rather than allow the state of affairs, as I saw it, to go unchallenged. The commission is the creation of the Oireachtas following proposals from the Government. It is my and the Government's duty to return to the Oireachtas when we believe that reform is necessary in order to achieve the objectives of the original legislation. That is what the review of the commission is about. The purpose of the review is to find a way through which the mandate given to the investigation committee under the legislation can be carried out in a more efficient, cost effective and timely way. As part of that process, consideration was given to the issue of what additional powers could be given to the investigation committee to facilitate its operation.

The first phase of the review was completed and a report submitted to the Government. The recommendations are currently reflected in draft legislation being prepared by the Office of the Parliamentary Counsel. However, following on from that review, further amendments are being considered which are likely to result in further changes to the way in which the investigation committee operates. The Government also considers that, in the light of the Supreme Court judgment in the Meenan case and the current case taken by the Christian Brothers in the High Court, it is prudent to have regard to the judgments in framing amending legislation.

Consultations with the main survivor groups are also continuing. A number of meetings have been held with these groups, the latest of which took place on Thursday, 25 September. The meetings have been very constructive and useful to me in considering how best to proceed. There is a strong sense that we share a common objective in ensuring that the investigation committee can achieve its mandate in an effective and timely way. It is my intention that the revised remit of the investigation committee of the commission will be legislated for by the spring of 2004.

In the meantime, the Government has appointed Mr. Seán Ryan, senior counsel, as chairperson designate of the commission. Mr. Ryan comes with a wealth of experience from his practice in law. In addition, he comes with direct experience of the issues around past child abuse having chaired the compensation advisory committee. The committee drew up recommendations for financial awards to abuse victims under the residential institutions redress scheme. Mr. Ryan also acted as counsel to the Ferns inquiry.

I am sure you will join with me in wishing Mr. Ryan every success in this important post. For my part, I assure Mr. Ryan, and this committee, that my Department and I will continue to give every assistance to the commission in carrying out its mandate. The Government has also decided to introduce legislation to increase the number of High Court judges and, subject to statutory provisions, intends that Mr. Ryan shall be made a High Court Justice. This will ensure that Mr. Ryan will be separate and independent of the Executive and Legislature and ensure that the integrity of the independence of the chairperson will be maintained. The Government has requested Mr. Ryan to immediately undertake his own independent review of the operation of the investigation committee. This review is to be completed within a period of eight weeks.

The terms of reference of the review are to carry out a review of the working of the commission and to make all necessary recommendations having regard to the interests of the victims of abuse; the completion of the commission's work within a reasonable period of time and in a manner consistent with a proper investigation; and to achieve the above objectives without incurring exorbitant costs. Should this review identify a requirement for further amendments to the legislation, these will be considered by the Government. I am confident that the commission will give every assistance to Mr. Ryan in his role. I am also assured by the other members of the commission that they will give every assistance to Mr. Ryan in the transfer of the position of chairperson.

Chairman, I thank the Joint Committee on Education and Science for inviting me here today and I will be glad to deal with any questions it may have.

Deputy Enright

I requested the attendance of the Minister at the committee three weeks' ago to discuss this issue. I welcome him and his officials. However, if the work of the committees are to have any real function, particularly when the Dáil and Seanad are not in session, it would be preferable if meetings could be arranged more expeditiously.

On the issue of the enabling of the Laffoy commission, as it was, what has the Minister to say to Ms Justice Laffoy's charge that since establishment, the commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred in it by the Oireachtas? Obviously, some of the issues that she took issue with evolved before the present Minister for Education and Science came into office. However, three out of the five of her direct complaints were under the Minister's direct responsibility. Why was the Minister's handling of the request for the provision of adequate resources, which commenced in June 2002, dealt with in such a slow manner? I do not accept the contention that the Government took a decision to provide the resources because, if even if that decision was taken, the resources for work were provided.

On what basis does the Minister state that the Government decided on 3 December 2002 to review the commission's mandate? Why was this not completed in mid-February 2003 as originally had been expected? Clearly the Minister expects Mr. Seán Ryan to be able to carry out a review into the commission in eight weeks, yet it was not able to be done in a greater timeframe. We still have not seen the review published in well over a year. We are to enact legislation both to change the number of High Court judges in a manner that is at variance with how judges have been appointed since 1998 and to change the workings of the commission. If we are to do so, at the very least, Members of the Oireachtas should be entitled to see this review before we have to take such steps in enacting new legislation.

Ms Justice Laffoy made a serious allegation against the Government, rather than the Minister directly, stating that due to long periods of uncertainties for the commission, it has effectively negated the guarantees of independence in the performance of the functions conferred on it by section 3(3) of the Commission to Inquire into Child Abuse Act 2000. It has militated against the commission being able to perform its statutory functions as envisaged by the Oireachtas with reasonable expedition. The Government has so far failed to show that this accusation is untrue.

The Minister stated in an interview to RTE news on 9 September 2003 that the Government did not agree with Ms Justice Laffoy's view of her independence being undermined. He stated that this was not his view nor that of the Government's. This seems to be a total contradiction to the stand taken by the Taoiseach on 8 September 2003 when he initially agreed to the findings of Ms Justice Laffoy. This needs to be clarified.

Ms Justice Laffoy requested sufficient, additional resources to enable the investigation committee to work in four divisions. Her objective was to finish phase one of the commission's work by July 2005. Her concerns at the time, she stated, were motivated by the need to bring closure for complainants and victims, many of whom are old and in bad health. It was also to avoid the unfair situation where accusations are made against individuals that may not stand up. Why did that spark a Government decision to review the mandate of the commission and why did it take so long?

The Minister agreed in principle to the provision of resources and then suggested that staff may be recruited in a gradual fashion on short-term contracts. This was because the Minister had decided that the review could impact on the commission's future work. Will the Minister agree that on this issue, Ms Justice Laffoy never received a clear answer from the Government on whether resources were to be provided? She asked the Minister and the Department of Education and Science time and again what was meant by these statements. She believes she never got a clear answer. This is a question the Government has not answered since either.

On 13 December 2002, the Secretary General of the Department of Education and Science stated that the commission had to continue its work according to its statutory remit. However, in July 2003 the Minister stated that it is manifestly in the public interest that costs do not continue to be incurred in respect of matters which may not be ultimately investigated. This obviously begs the question as to who is in charge and responsible here? Why were conflicting letters going out from the Minister and his Secretary General to the commission on this issue?

The Minister has continuously stated that the victims are his prime concern. However, will he admit that he is also driven by an agenda that has costs at heart? On 13 December, the Secretary General in a letter stated that the object of the review is to address the issue of costs. Can the Minister clarify this?

On 8 April, the Minister had the heads of a Bill approved by Cabinet. One week later on 15 April, he told the Government that a further review was necessary. There has been no explanation from the Minister or the Government why this happened. He initially told us that before he published all the documentation the Cabinet wanted a more serious review. This is not the case because in his published documentation he stated that he told the Government that a further review was necessary. Which is the case? What happened over the seven days to change his mind? Did further information come to hand? If so, what was the content of that further information that so substantially changed his actions in this matter?

Does the Minister intend to publish the review that he carried out? Are there two separate reviews? Is there a post and prior 8 April review? Will they both be published? Will the new chairman of the commission, Mr. Seán Ryan, get copies of both reviews when conducting his own review? Will his review take into account the review carried out by Ms Justice Laffoy? Where does the Minister see the fundamental flaws in the legislation previously enacted by the Oireachtas which he strongly feels need to be changed?

What does the Minister have to say about the allegations by Ms Justice Laffoy that there was no real engagement by the Department of Education and Science with the commission? She claimed she was worn out by the Department's expressions of contrition which were not matched by delivery. She stated that it beggars belief that we are where we are today, 18 months down the road and the Department had not still dealt properly with requests from the commission. This is an independent member of the Judiciary appointed by the Government and the Oireachtas to chair a commission whose functions were enabled by the Oireachtas and who clearly feels that the Department of Education and Science was not co-operating with her. She has no reason to state this other than it is clearly the experience she has had. I assume her report, which will be published in November 2003, deals further with this issue. For now, I want an answer to that allegation.

Ms Justice Laffoy is claiming that the Department of Education and Science, under the direction of the Minister, did not co-operate with a commission set up by the Oireachtas. This is an appalling charge against him and his Department. We are ready as Members of the Oireachtas to accept criticisms of other people before other tribunals and commissions for non-co-operation and it is appalling that this criticism can be levelled by a High Court judge against a Department.

Can the Minister confirm that Mr. Seán Ryan, when he is in office as head of the commission, will not meet the same obstacles from the Department of Education and Science? Have any changes been made in the Department to ensure that this will not happen again? What communications has the Minister had with those in the Department instructed to deal with the requests from the commission? Has he received an explanation from those who previously dealt with requests from the commission as to the reasons for these delays? Does he have any concern that the Department of Education and Science, which is funding the commission and from which staff have been seconded to the commission, is itself being investigated by that very commission? Does he consider this to be appropriate? Can he confirm that all those seconded to the commission by the Department have never, in any way, had a role in dealing with any of these allegations or the handling of them when they were staffed in the Department?

On the deal between the religious orders and the State, both the Minister and the Taoiseach seemed to be surprised by the number of victims who came forward. They also claimed to be surprised that the issues were to be contested by the alleged abusers. The Minister referred to that in his statement to the committee and said he thought the commission could carry out its work free of the adversarial environment and legal formality. In light of what appears to be a lack of understanding on both their parts with regard to the scale of this problem, how can the Minister sit in a Government and the Taoiseach preside over a Minister who made a deal with the religious orders, effectively indemnifying them against any costs above €150 million. They are both openly admitting that the previous Government signed a deal when the Taoiseach and the previous Minister for Education and Science had no idea of either the scale or likely scale of claims out there. This beggars belief, to borrow a phrase from Ms Justice Laffoy. Will the Government now publish all the supporting documentation leading up to the signing of the deal with the religious orders? Was the Government given any intimation that allegations would not be contested?

What reasons were behind withholding the publication of the letter of resignation of Ms Justice Laffoy? Following the publication of the letter by a Sunday newspaper, does the Minister believe that it would have been preferable for him to have done so? Has he made internal departmental inquiries to ascertain how the letter came into the possession of the newspaper? Can he confirm if he or his officials have met with Mr. Ryan since the resignation of Ms Justice Laffoy? Can he further confirm whether he or his officials have discussed with Mr. Ryan the workings of the commission and how it might proceed?

In relation to the agreement with the religious orders, can the Minister confirm that he does not believe this represents a good deal for the State and for taxpayers? Does he accept the criticism, to be published today, of the Comptroller and Auditor General in regard to the deal? Does he agree with the estimated level of liability to which the State may be exposed? Can he confirm whether the Minister for Finance had any reservations about the deal and whether these reservations were raised with the Department and Minister for Education and Science prior to the signing of the deal? Can he further confirm the level of involvement the then Attorney General had in the deal? Did he have sight of it before it was signed and did he approve of it?

Deputy O’Sullivan

I put it to the Minister that the Taoiseach's apology of more than four years ago to victims of child abuse in the institutional care of the State must ring hollow in view of what has happened in relation to the Laffoy commission and the specific requests of Laffoy that were not responded to by Government. Does the Minister accept that there has been a breach of faith with the victims? Four years after the apology and the announcement of the setting up of the commission on child abuse, there has, in effect, been very little meaningful response for the vast majority of victims of child abuse in the State?

On the same day as the Taoiseach's apology in 1999, the Government announced that the Commission to Inquire into Child Abuse would be specifically mandated to carry out a thorough and comprehensive inquiry into allegations and establish responsibility at the level of the individual abuser, the institution and management and regulatory authorities, and that the committee would have available to it the resources and all the legal powers and protections it needed to do this. I put it to the Minister that from June 2000, Ms Justice Laffoy made it clear to the Government that she did not have the necessary resources or staff to carry out the obligations that were given to her in what she called a timely fashion.

I accept that the Minister, Deputy Dempsey, was not the Minister for Education and Science at the time, but he was a Minister. The Government as a whole failed to respond to the concerns that Ms Justice Laffoy expressed on a number of occasions from that time onwards in terms of the resources she needed for the operation of the commission. She made a specific proposal in relation to parallel hearings in four divisions which she estimated would ensure that all of the complaints would be dealt with over the three years. At that stage there were 1,730 complaints. She did not receive any response from Government. I would like the Minister to explain why this was the case. It appears that the request was totally ignored. What was the response of the Minister and the Government to that request? A review was promised soon after that request and in December 2003 correspondence was entered into with Ms Justice Laffoy and the commission. That review was to be completed in February of last year. It was not published and we still do not know what was in it. The Government subsequently made it clear to Ms Justice Laffoy that the resources she requested to carry out her work would depend on the outcome of the review. The review, however, was never published and the resources were never made available. I support Deputy Enright's call for the Minister to publish the review.

What became of the heads of a Bill that were apparently presented to Government subsequent to that February review? Will the Minister publish the heads of that Bill? Why was there no meaningful response from Government or the Department of Education and Science each time Ms Justice Laffoy raised the issue of the inability of the commission to carry out its duty because of a lack of resources and obstacles within the Department with regard to information necessary for the commission to carry out its work?

When the second review was announced, Ms Justice Laffoy saw that there was no option for her but to resign. Throughout the process when she brought the attention of Government to the problems the commission was having, there was no meaningful response to enable her and the commission to carry out the work. She made it clear that she brought these issues to the attention of Government in the interests of victims of abuse and those who were accused. She saw it as her duty to carry out her obligations in a timely manner. She explained that she could not do so unless she was given the necessary resources. The blame has to fall on the Government, of which the Minister is a part, although I admit he was not the Minister for Education and Science throughout that period. However, it is the responsibility of Government to explain why it did not respond to the concerns of Ms Justice Laffoy.

I reiterate a point made by Deputy Enright - what is the actual response of Government? The Taoiseach appeared to indicate that he accepted Ms Justice Laffoy's criticisms when she resigned but subsequently there has been a turnabout on that. Does the Government accept that Ms Justice Laffoy was right?

In regard to the legal advice that was given to the Government in setting up the commission, the impression is given that the adversarial system that developed came as a surprise to the Government. Surely legal advice was obtained before the commission was set up in relation to what would be likely to happen. That legal advice must have addressed whether the adversarial developments that arose were likely to happen. Was it not the duty of the then Attorney General to advise the Government as to the likely outcome?

The same applies to the indemnity deal which was signed on behalf of the Government by the then Minister for Education and Science, Deputy Woods, in June 2002, just before going out of office. Did the State's legal advisers peruse the document that was to be signed? Did they peruse the legal indemnity that would be given to the religious institutions, whereby only €128 million would be payable by the religious institutions, after which it would be entirely the responsibility of the State? It is a disastrous deal which the Comptroller and Auditor General has suggested will cost the taxpayer up to €1 billion, if we can believe what we read in the papers. Did the Government's legal advice not foresee what would be likely to happen, particularly the legal indemnity on the religious institutions, whereby outside of the €128 million, regardless of what occurs in the courts or the redress board, it is entirely the financial responsibility of the State and the taxpayer? The legal advice in relation to that deal and the setting up of the commission are interlinked and it is the responsibility of Government to tell the public what the legal advice was. Will the Minister publish the legal advice in relation to both of those issues and explain why the apparent judgment of Government at the time did not seem to be correct in relation to the outcome, both as regards the commission and the indemnity deal with the religious orders.

Ms Justice Laffoy invested a considerable amount of work in the commission. She has been most upfront in relation to the obstacles she saw in her path - which were not addressed by Government. Will the Minister discuss her work with Ms Justice Laffoy? What is the Government's position in regard to her report on the section of the investigation which she has carried out? The excellent work she has done should be put on record.

What are the mandate, resources and timeframe in relation to the proposals of Seán Ryan? Victims are entitled to know whether he will be given the appropriate resources and if the concerns of Ms Justice Laffoy will be taken on board in regard to financing the Seán Ryan section of the commission.

Will there be a timeframe? The Minister said today that it will probably be spring 2004 before the work is up and running. That will be five years after the apology to the victims. Is it not realistic for people to demand a greater sense of urgency on the part of the Government in view of the original decision to set up the commission and, as I said earlier, of the Government commitment that the committee would have available to it all of the resources and legal powers and protection it needed? Today the Minister appears to indicate that money is very much a factor and that the resources will not be available. Will the Minister clarify if the commission will be given every resource it needs in order to carry out, in a timely fashion, the job that the original commission was given?

Can the Minister assure us that all victims who wish to come before the commission will be able to do so; that it will not be a sampling, as was suggested in his initial response to Ms JusticeLaffoy's resignation? Can he clarify what changes he intends to make to the mandate for the commission? Will it, for example, involve a reduction in the number of organisations that will be questioned or will there be an extension, as he has already promised, particularly in regard to the redress board, to other institutions where it is deemed to be appropriate?

Deputy Enright asked a number of detailed questions and I do not wish to repeat them, but I do wish to focus on the role of the Department of Education and Science. Should it maintain a greater distance from an inquiry which, in some ways, will be looking into past operations of the Department itself? There is too close a tie between the Department responsible for the investigation and the Department which is primarily being investigated by the work of the commission. Is there any rethinking in this regard? There is a sense that this is not right, that there needs to be more of a distance, more of an objective separation between the Department with overall responsibility and the investigation, which clearly has implications for the Department.

My main concern is that when the commission was set up, Ms Justice Laffoy was given the job to carry out investigations in a timely manner. I refer specifically to the investigation committee, not the confidential committee. She clearly stated the problems she was having over a long period without any apparent response from the Government. Is that correct in the view of the Minister? Will the Minister address the problem of the investigation committee? The confidential committee has a different remit. From talking to victims, I do not believe they feel it can carry out the functions that were intended for the investigation committee.

I urge that something be done, in the interests of people who were put into institutions by the State and for which an apology was given more than four years ago, but for whom there has been very little, if any, meaningful addressing of their problems, understanding of what they have gone through or practical response from the State. Can the Minister assure us, particularly the victims, that their concerns are being addressed and that there will be a speedy response to the various issues that arise?

Deputy Gogarty

As we know, Wednesday is the time for statements so I will not make any today. Most of my questions are slightly different to the two previous speakers, but I apologise for where there may be an overlap.

Will the Minister give a commitment that, in future, the commission, in whatever guise it presents itself, will allow survivors to give their account and face their alleged attackers under absolute privilege without recourse to legal teams? If that is not the case, I urge the Minister to make a proposal to the Taoiseach that Oireachtas Members would read out victims stories under privilege. Either way, the story has to be told and this needs to be done as soon as possible.

Does the Minister acknowledge that, in hindsight, the Commission to Inquire into Child Abuse Act 2000 is flawed and needs to be amended in light of the hold-up that has taken place in getting to the truth of what happened in various institutions?

Does the Minister acknowledge that he did not realise the numbers of cases involving institutional abuse, as reported in the media? Can he also confirm, as reported in the media, that the Taoiseach did not realise the numbers of cases involving institutional abuse? If the Minister or the Taoiseach answers in the affirmative, would the Minister acknowledge that one or both of them acted either untruthfully or incompetently given that the former Minister for Education and Science, Deputy Woods, on the introduction of the redress bill into the Dáil, stated that there were at least 3,000 people whose time in an institution was traumatic?

Will the Minister outline what real evidence has emerged in relation to the vaccine trials issue? When will such evidence be put into the public domain? Does he envisage that criminal prosecutions will arise in this regard?

Does the Minister intend to carry out an investigation into how moneys given to victim support groups under the terms of the €12.7 million identified to be used for educational programmes for former residents of institutions and their families has been spent, particularly by NOVA and Right of Place? Can he confirm that complaints have been made regarding the inappropriate spending of such moneys by some of the individuals involved?

In relation to the indemnity deal, does the Minister acknowledge that his predecessor made a grave and fundamental error in signing the €128 million deal with the church when it transpires that a large proportion of the property included in the deal cannot be sold commercially to raise funds to compensate victims? Does the Minister acknowledge that the reason the Government agreed its suspect deal with the church was that it was running scared of going down the court route because the church would try and tie the Department of Education and Science and other Departments in as co-defendants, thus potentially costing the State far more in compensation than the current situation vis-à-vis the redress board and Laffoy?

In relation to the redress board, who advised Seán Ryan of the weightings that currently apply? Who ultimately made the decision to allow such weightings to be used? Does the Minister acknowledge that, in hindsight, the redress board is not working and that the weightings are inadequate? Does he agree that the provision to fine survivors who reveal the amounts settled at the redress board is in contempt of the European Convention on Human Rights? Justice, in being done, must also be seen to be done. Why are some key recommendations of Seán Ryan, SC, in relation to the redress board, not being implemented, particularly the need to match compensation payments from the board in line with those of the High Court? Can the Minister confirm that average compensation awarded via the redress board route are averaging just 10% of comparable awards made via the High Court? What is the Minister's figure in relation to the average compensation award? Can he provide public evidence as to how such a figure was arrived at? Does the Minister believe that payments of between €10,000 and €25,000 from the redress board to victims are sufficient? Can he confirm that the highest amount awarded under the redress board is just over €200,000 and that the survivor in question was subjected to further abuse in that he was used as part of an experiment? Does the Minister acknowledge that this last figure and, indeed, the lower figures mentioned when compared with the hundreds of thousands paid out by the High Court for abuse in residential institutions, and indeed for abuse not even deemed to be of the severest level, are paltry, insulting sums that need to be rectified?

The Minister stated in meetings with groups representing victims that sampling would not be looked at for the moment. Can he give a commitment to this committee, or to the Dáil, that sampling will not be introduced and that getting to the truth of what happened in each individual case will remain fundamental? Can he give a commitment that the terms of reference given to Seán Ryan will rule out sampling as an option? Can he guarantee that the appointment of Seán Ryan to carry out an independent review is not a way of introducing sampling by virtue of the Minister washing his hands of the matter in the future by saying that he will not intervene on sampling in an independent review? This matter needs to be clarified.

I will not repeat the issues raised by other speakers in relation to the fallout from the Laffoy commission. Will the Minister give a commitment that in any new review, people who have suffered institutional abuse will not be forced to submit sworn statements? Making a sworn statement should be at the discretion of the survivor and dependent on guarantees in regard to the result of the investigation, the naming and shaming of the institution in question and a commitment that the entire process will be transparent so as to prevent sworn statements ending up in a bin?

Will the Minister give a commitment that the Government will publish all documents relating to the proposed changes to Laffoy in advance for public scrutiny? Why has the Government so far refused or failed to publish any of the internal Government documents surrounding the decision of the Minister for Education and Science to commence a second review of the Laffoy commission in April of last year, only one week after concluding the first one? Does the Minister acknowledge that the public has a right to examine the case put by him with a view to determining the motivation behind the Government's decision?

Was cost the primary factor in the Government decision to commence a second review? If not, can the Minister provide documentation that proves that this was not the case? Will he outline the reasons the Government never responded adequately to Ms Justice Laffoy's proposals in June 2002, which arose from her concerns about costs and timescale, and proposed that the commission would operate on the basis of four divisions whereby the commission would have concluded its work by July 2005? What recommendation did the Minister or his predecessor make to the Government regarding the need for a response or the need to implement such proposals? What proposal came from the Department of Education and Science?

Does the Minister acknowledge that in the wake of the resignation letter from Ms Justice Laffoy, among other events, the Department of Education and Science, and indeed the Ministers on watch during the last number of years, including the Minister for Health and Children, Deputy Martin, and the former Minister for Education and Science, Deputy Woods, have lost all credibility and that responsibility for all matters relating to dealings with the Commission to Inquire into Child Abuse or any successor inquiry should be transferred to other Departments, aside, that is, from the Department of Justice, Equality and Law Reform?

Does the Minister accept that his announcement of the appointment of Seán Ryan, notwithstanding Mr. Ryan's excellent credentials, is premature and that any new appointment or so-called independent investigation should await the interim report of the Laffoy commission, not to mention a full explanation of the Laffoy issue at this meeting and the Dáil statements scheduled for Wednesday? Does he acknowledge that the early appointment when the issue was on the agenda this week shows nothing but contempt for the Houses of the Oireachtas and typifies the Government's handling of the abuse issue so far?

Deputy Crowe

The Minister will be aware of the importance of maintaining the independence of the commission. Does he agree that it is unacceptable that a large number of the commission's staff is seconded from the Department? Another factor is the reliance of the commission on the Department for funding given that the commission is investigating the Department of Education and Science, among others. Does he have any proposals to change the staffing arrangements?

Will the Minister explain the contradiction between the Department's concern over the cost of proceeding with the inquiry and its complete lack of concern, to the point of ignoring advice from the Department of Finance, in signing up to the sweetheart deal with the religious orders where the State has no limit to its liability in return for as little as €60 million worth of land and property? Is the Minister aware that the Minister for Justice, Equality and Law Reform, who was Attorney General at the time of the signing of the deal, admitted yesterday that the merits of the deal were questionable? Does he agree with that statement? The Minister appears to be fond of reviews, according to the material presented to the committee on this matter. Does he not agree that this deal should be reviewed, particularly in light of the estimated cost of €1 billion to the taxpayer?

Does the Minister intend to proceed with the proposal in regard to sampling, which may result in hundreds of victims being deprived of their right to face their abusers? Is he considering a limited use of sampling or has he withdrawn the idea in its entirety? I am aware that the question has already been asked and I would be grateful if he would clarify this matter.

Is the Minister aware that, at a meeting yesterday, the Irish Survivors of Child Abuse condemned the fact that it is not involved in the consultation process referred to in the Government response? Will he explain this omission? In response to Ms Justice Laffoy's letter, the Government inferred that an 11 month delay from publication of the Bill and the setting up of a compensation scheme was in no way unreasonable. The delay was, in fact, closer to 18 months since the Government approved the scheme, in principle, in October 2002. The Government has shown great determination in forcing legislation through the Oireachtas in a matter of days. An 18 month delay is completely unacceptable and demonstrates the low priority given this issue by the Department and the Government.

The Government refuses to accept that the commission was not provided with adequate resources. Despite this, the Government approved in principle a request for extra staff. Is this not an admission that the commission lacked the necessary staff to fulfil its mandate? How can one claim the commission had sufficient resources and then decide in December last that it needed more staff? Why did it take six months, from June 2002 to December 2002, for the Department to process the requests for additional staff? Ms Justice Laffoy stated earlier this month that since its establishment, the commission has never been properly enabled by the Government to satisfactorily fulfil the functions conferred on it by the Oireachtas. Does the Minister believe the Government's response refutes this allegation?

Will the Minister comment on the proposal from Ms Justice Laffoy to deal with 1,730 cases before the commission through parallel hearings in four divisions? What is the view in the Department as to the merits of this idea in processing the cases more swiftly?

Is the commission still awaiting resources? Previously, the Taoiseach and the Minister commented that they were surprised by the number of people coming forward in regard to this issue. When the Laffoy commission was set up, 1,000 people were preparing to take court action. Has the Minister met with victims groups? If so, I find it hard to understand his surprise at the number of people who want to become involved in this process. From knowing such victims and watching programmes about this issue, it is clear that, while in some cases individuals were at fault, beatings and violent behaviour were endemic in the system. The fist, strap and cane were part of the set up.

In ordering the second review, the Government made it clear that, at some stage, the commission would be given a different mandate to that which it currently holds. The judge says there is now a risk, albeit a slight one, that others in the commission may have to be replaced as they may have come across information or have formed impressions while implementing their current mandate that would hamper their ability to carry out a new mandate with an open mind. I ask the Minister to comment on that.

Senator Minihan

I welcome the Minister and his officials. The interest of every public representative is to ensure that the commission works effectively and achieves the desired result, mainly on behalf of the victims. We should not lose sight of where we are going.

I am somewhat astonished at how people have played politics with such a sensitive and emotive issue. I question the motivation of such people. My motivation - for which I make no apologies - is the interests of the victims. That is the motivation of the Government.

Deputy O’Sullivan

That is everyone's moti-vation.

Chairman

Senator Minihan, without interruption, please.

Senator Minihan

I certainly have no intention of playing politics with the misfortunes that some people in this country had to endure through their lives and of which we are all deeply ashamed. I ask the Minister to state how big an impediment to the workings of the commission was the agreement on the legal fees and the method of their calculation. I wish to comment on the remarks made by many people about the delay on the part of the Government in publishing Ms Justice Laffoy's letter. Does the Minister agree that Ms Justice Laffoy herself answered that question when she stated in her letter of 2 September that she intended posting her intention to resign on the commission's website that day? Quite interestingly, in a letter of 10 July, her final paragraph stated that the commission recognised the urgency of implementing necessary action and nonetheless would appreciate receiving prior notice of any statement which it was intended to issue in relation to the commission and that the commission would be anxious to adequately prepare for reactions both from the public and its own personnel. Ms Justice Laffoy sought a period to be allowed to respond adequately to something. I have no difficulties whatsoever with the Government seeking that same privilege and I think that point should be made.

The commission has been a work in progress. There was no template and no previous experience and it was unique in its nature. From the outset there were complex legal issues and issues arose during the workings, resulting in reviews to ensure a successful and speedy outcome. No one can deny that and no one had the master plan on how this should operate. Issues arose and there was an onus on everyone to act responsibly to address those issues. I have no difficulty with reviews taking place if at the end of the day those reviews lead to the outcome which we all wished for when this commission was established.

Is the Minister confident that with the appointment of Mr. Ryan, the work of the commission to date, the reviews in progress and new legislation will enable the commission to get back on track and bring about a speedy and effective outcome to its deliberations?

Deputy Mulcahy

I welcome the Minister's statement which is a useful clarification. I have one query to raise at the end of my contribution. I thank the Minister for making this statement to the committee. There are two things we all want to achieve: first, the public want full information on what happened and they want that information within a reasonable timescale; second, the victims want compensation and they are entitled to compensation.

I was not aware, Chairman, that the committee intended having a discussion today on the Residential Institutions Redress Board issue. Many of the questions seem to be focused on that issue. I thought that was a conversation or discussion which the committee has had and, quite frankly, we have had quite a few of them. I thought that issue was more or less, I will not say settled, but I thought that today the committee was inquiring primarily into the resignation of Ms. Justice Laffoy.

Chairman

That is correct, Deputy. The Minister explained in his opening remarks that the redress board continues and this has no implications for it but there are some questions I consider to be reasonable in the context of what the committee is dealing with.

Deputy Mulcahy

I am not saying they are unreasonable. Nobody has complained to me that they have not had a fair hearing or proper compensation from the Residential Institutions Redress Board. As far as I am aware, its work is ongoing and people are satisfied. If there are questions to the contrary and if there are groups or individuals who are unhappy with those levels of compensation, when the Bill was going through this committee we discussed the levels of compensation - I cannot recall them now but I remember thinking at the time that it was to be an informal and non-adversarial form of compensation and the levels of compensation in that context seemed reasonable to me - and I do not recall a lot of objections to those levels of compensation as they were being discussed by this committee. That is all I wish to say about that.

With regard to the Commission to Inquire into Child Abuse, I am horrified to hear it was going to take eight to 11 years. I do not think that would be acceptable to the public. We have seen in other contexts how many members of the public and pundits are braying for quick results from inquiries. They are looking at the Iraq inquiry in Britain and saying, "My God, they have had a result within a few weeks". If one said in England that an inquiry result would take eight to 11 years, one would be laughed at. Without going into the detailed circumstances surrounding the resignation of Ms Justice Laffoy, it seems to me, as a member of this committee and as a Member of the Oireachtas, a period of eight to 11 years would be completely unacceptable. I have read the terms of reference of the review committee being headed now by Séan Ryan. He is an excellent choice. I am glad that within those terms of reference there are two points with which I am fully in agreement - the completion of the commission's work within a reasonable period and in a manner consistent with a proper investigation and to achieve those objectives without incurring exorbitant costs. To my mind, that is eminently reasonable. We do not have unlimited time or unlimited money. It behoves those who are asking 101 questions to be reasonable.

Chairman

There should be no interruptions from the Visitors Gallery; I shall have to ask you to leave if you continue to interrupt. You are not entitled to interrupt from the Visitors Gallery.

Sitting suspended at 4.08 p.m. and resumed at 4.18 p.m.

Deputy Mulcahy

The thrust of what I wanted to say is that the public want and are entitled to full information and all the victims are entitled to be heard and all the victims should be compensated properly. In that regard I have two specific questions for the Minister. In his statement, the Minister said that concern about the progress of the commission was shared by survivors' support groups who urged his Department to take action to ensure that the report of the commission be delivered as soon as possible. Will the Minister give the committee some details about that?

I am concerned about the timescale for new legislation. The Minister states it will be in the spring of 2004. I note that he has asked Mr. Ryan to report within eight weeks or so. Does it need to be that long before the legislation is introduced? New legislation should be given priority. There is absolute agreement within the Oireachtas that this issue has to be fully investigated and that every victim of abuse has a right to be heard fully and properly. That is not to say that we should support any tribunal that would go on for eight or 11 years or any tribunal that would be borne down by exorbitant legal costs. We must be practical in every aspect of our work. I hope none of my colleagues on the Opposition benches is suggesting that we should not be practical. With new legislation and a new chairperson at the helm, we can and must have a practical inquiry into this matter. Hopefully the full result of the commission of inquiry will be available in one or two years and not in eight to 11 years, which I do not believe anybody would support.

Deputy Stanton

I welcome the Minister and his officials. In response to Senator Minihan, I do not think anybody wants to, as he calls it, play politics with this issue and I certainly do not wish to do so. I do not think any colleague from either side of the House wants to or should play politics with this issue but we have a right and a duty to ask questions.

When the former Minister for Education and Science, Deputy Woods, spoke in the Dáil on Second Stage of the Bill, he stressed the importance of the therapeutic aspect of people being enabled to tell their story. Does the present Minister share that view? How does the Minister reconcile sampling with the therapeutic role of the investigation committee? The former Minister for Education and Science, Deputy Woods, said that everything else would be subordinate to this because in his view it was of paramount importance. According to the Minister's statement today, the commission indicated in July 2000 that the total number of applications to the investigation committee was 1,957. Does the Minister agree that all those applications should be heard individually in order to fulfil the therapeutic role which was stressed at the time by the Minister, Deputy Woods?

The other issue is that of resources. Many colleagues on both sides of the House have noted that in June 2002, the then chairperson of the commission indicated that she wanted additional resources. These resources were not forthcoming. I contend she knew at that time that she would need those resources because the numbers of applications were fairly high. Based on the resources of the commission, the envisaged timeframe would not be met and it could take eight to 11 years and I agree that is too long. The only solution would be to increase the resources but that did not happen. Will the Minister tell the committee why that did not happen and what were his reasons for not increasing resources at that time? One of the important aspects of this commission and all other such commissions established by the Oireachtas is that they must be totally independent and free from all kinds of interference by Ministers, Government, committees such as this or anybody else. Does the Minister agree that by not providing resources, the Government interfered with the workings of the commission which is a very grave matter? The resources were requested by the chairperson who is a High Court judge.

The third issue has been raised already and it is the unfairness of putting the Department of Education and Science in the position of being regarded as investigating itself. Will the Minister agree it is unfair on the Department? Nobody should be a judge in his or her own case. The Department was supplying the resources and some of the personnel overseeing the legislation and the work. Will the Minister agree that it is perhaps time to remove that burden from the Department and remove any hint of the Department being a judge in its own case? I am not implying that the Department interfered in any way. The Department is the subject of investigation by the commission because the State was involved over the years.

The Minister stated that there were possible legal problems regarding the publication of the report. He stated that there was a delay due to resources and costs were involved and that is why he instituted the review. Should these problems not have been flagged long before now? When the commission was established, was there any discussion in Cabinet or any advice from the Attorney General regarding those three issues?

Deputy Burton

I attended a meeting yesterday in Liberty Hall along with representatives and Deputies from other political parties but none from either of the governing parties, unfortunately. Some of my questions to the Minister arise from that meeting.

In relation to the Minister's rather limited and in some ways rather lame opening statement to the committee, I find it surprising he should express surprise about the resignation of Ms Justice Laffoy when, as has been pointed in some detail by my colleagues, Ms Justice Laffoy regarded herself as seriously hampered in her work by the lack of resources and to some extent, by possibly a lack of a fruitful co-operation with the Department. Why was the Minister so surprised?

Mr. Ryan seems to have earned universal esteem as shown by the comments on his appointment. Nonetheless, Ms Justice Laffoy has indicated that she will have her report ready some time in early November. This is a very complicated situation which has not been managed very well by the Department both under the present Minister and his predecessor. In the context of the short timescale before Ms Justice Laffoy's report, it seems very odd from a professional point of view to appoint someone else before a very esteemed judge has had an opportunity to make her report and to make an input of more than has already been revealed in her letters and correspondence arising from her resignation. Why was Mr. Ryan's appointment brought forward? I understand the technical argument, but I would like to know if his appointment is likely to hamper and prejudice his ultimate role before he, as a legal professional, has an opportunity to hear what the learned judge has to say in some detail some time early in November.

My second question relates to the Minister's statement that when the commission was established in 2000, it was the Government's intention to carry out its work free of the adversarial environment and legal formality of the courts. That is like children talking about Christmas. Deputy Mulcahy and other members with legal expertise know how the hepatitis C tribunal worked out in the long run. It worked out well for the people who went before it. It is not as if the country is without experience of compensation tribunals. We also had the experience of the Army deafness cases. I am astonished at the Minister's statement. There were many reasons, but the main issue is that far from being a relatively informal forum, the investigation committee assumed the formality of the High Court complete with teams of lawyers. God bless the innocence of some people in the Government.

The Minister's predecessor, Deputy Woods, negotiated in great secrecy a deal with the religious orders. From evidence given to the Committee on Finance and the Public Service, it seems that deal was largely bereft at critical junctures of the input and expertise of the Department of Finance and of the Office of the Attorney General. When such a deal was being made and the Department of Finance had given a relatively generous overview, it was not unreasonable in the historical context of what happened in the institutions to expect a 50:50 assumption of responsibility between the State and the religious orders in charge of the institutions. It was perhaps generous compared to the experience in other countries. Although the Department of Finance took that viewpoint, the Minister's predecessor went on a solo run for a long number of months and negotiated a deal.

In negotiating that deal, why were compliance sections not included in relation to the behaviour of the religious orders? I know they could not speak for the behaviour of their members or past members in terms of their co-operation with any commission of inquiry. The religious orders welcomed and, in many cases, gave individual apologies, which all of us would like to believe were sincere and well meaning. Yet, as the Minister said, the forum, which his predecessor agreed with the religious orders, did not have the informality which the Minister's officials expected, but instead assumed the formality of the High Court complete with teams of lawyers. That was the problem for Ms Justice Laffoy and her inquiry. That was why she made proposals how to get around these issues. However, the question remains why the Department, the Minister and his predecessor did not avail of the expertise of the Department of Finance, except at the beginning and at the end, or the experienced lawyers in the Office of the Attorney General and the experienced lawyer, the then Attorney General, who is an expert on everything in this country.

As regards our experience of commissions and tribunals, such as those relating to the Army deafness and haemophiliac cases, I have had some contact with the Truth and Reconciliation Commission in South Africa and with the war crimes tribunal in Rwanda. There are libraries full of how these difficult and sensitive issues can be dealt with in a fair, honest and honourable way in so far as it is possible to deal with such incredibly difficult human issues properly.

As the person in charge of a spending Department, the Minister is understandably and correctly concerned about the estimated legal spend of €200 million. In the context of the indemnity which his Department and his predecessor created, why is he not concerned about the €500 million to €1 billion bill to which the State is exposed? He should bear in mind that the horrendous legal costs are only at most one-fifth to one-tenth of the estimated total cost. The Comptroller and Auditor General will have more to say about that.

In the interests of helping everyone involved to move forward, will the Minister, as the person in charge of the Department, release all the correspondence, including the briefings, the documents and the initial briefing papers which were drawn up by the officials in his Department, which set the tenor for how this deal would be negotiated and which, presumably, had a significant influence on the behaviour of the then Minister, Deputy Woods. There seem to be three conflicting views and interests, all of which are important. What weight has the Minister given to the viewpoints and interests of the people resident in the institutions and of the Department of Education and Science which was responsible for such an oversight? It was not responsible for looking into the bedrooms of orphanages and institutions 20 or 30 years ago, but it was responsible for a general inspectorate. It was not responsible for the detailed supervision of the behaviour of individual members of religious orders. The behaviour of individual members of religious orders was and is initially supervised by religious orders. Nonetheless, the Department had an interest. That is why a number of colleagues said that the continued close involvement of the Department as a critical force in this procedure is inappropriate since it may amount to the Department running an investigation in which its own action or lack thereof is seriously questioned.

Chairman

I ask the Deputy to conclude or the Minister will not have an opportunity to reply.

Deputy Burton

In the context of the meeting yesterday, does the Minister appreciate that the commission process and the Taoiseach's welcome and genuine apology to the people who were resident in institutions and had suffered there reopened extremely sad, unhappy and dreadful periods in their lives which many of them had dealt with in their own way? This debacle - money has nothing to do with it - has made the situation far worse for them and their families. The Minister said the redress board is working well. However, because people are subject to potential criminal sanction if they talk about the redress board in detail in public, it is not working as well as has been claimed.

Chairman

I thank Deputy Burton. Everyone who indicated a wish to ask questions has now done so. On behalf of the committee, I apologise to you, Minister, and to your officials who came here in response to a request from us and should not have been subjected to the attacks from the Visitors Gallery.

I have two brief questions. Does the decision in the Meenan case and the decision pending in the other case mean that a meaningful investigation committee mandate is impossible? Should the State consider a criminal investigation along the lines of the CAB model? I suspect that if €200 million was available, it might be a more successful means of dealing with it. As an Oireachtas Member, I am alarmed that the decision of the Oireachtas has not been discharged and probably cannot be discharged in relation to the investigation element. Does the redress board have access to the confidential or investigative findings of the commission and its committees? Perhaps the Minister could answers questions only on Laffoy and the redress board in so far as it is relevant to Laffoy. That will rule out one element of the final question by Deputy Burton.

JOINT COMMITTEE ON EDUCATION AND SCIENCE debate - Monday, 29 Sep 2003

Commission to Inquire into Child Abuse: Ministerial Presentation.

JOINT COMMITTEE ON EDUCATION AND SCIENCE debate -
Monday, 29 Sep 2003