Amendments Nos. 1 and 2 are related and may be discussed together by agreement. Is that agreed? Agreed.
Order of Business. - Commission to Inquire into Child Abuse Bill, 2000: Committee and Remaining Stages.
SECTION 1.
I move amendment No. 1:
In page 3, subsection (1), between lines 25 and 26, to insert the following new paragraph:
"(a) the wilful, reckless or negligent infliction on a child of a fear of injury or failure to prevent such a fear, or failure to redress such a fear,”.
We all recognise that significant changes were made to the Bill as it went through the Dáil and most of those have significantly improved the legislation. I hope the Minister will be open to further amending the Bill today. I realise that demands are being made on the Minister to get this legislation through the House.
Amendments Nos. 1 and 2 are reflective of the debate we held on the Statute of Limitations Bill. It concerned the threat of abuse. On that occasion I read into the record the sum of the elements that we were trying to address. I made the point that it is very hard to determine when abuse moves from being sexual abuse to physical abuse, or vice versa. It is important to recognise that it is not just a question of what is written there concerning the first determination of abuse. I am sure the Minister will be open to accepting this point. It, of course, means, as stated in section 1(1)(a), “the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child”. That is definitely true and nobody could argue with that.
What it must also deal with, however, is the case where the child has been frightened into agreeing to do something by threats or warnings that there will be a recurrence of a previous physical injury, abuse or misuse. That will also have to be dealt with if it is the case that a child has been afraid of something and, as stated in the amendment, there was a "failure to prevent such a fear, or failure to redress such a fear".
In statements made by the victims in such situations, we have read about them becoming long-term bed-wetters. We do not need to wheel in a group of psychologists to tell us what that means. It is a fundamental internal response to fear of a threat of some description. It concerns a worry about tomorrow and that is the issue I am trying to address in this amendment. I do not want to rehearse the kind of debate we have already had. I ask the Minister to open his mind to this matter and to recognise that it is not simply about the "the wilful, reckless or negligent infliction of physical injury", it is also about the threat of such an injury. The Minister should keep that particular issue in mind.
Amendment No. 2 seeks to insert the words "pain, distress or" before the word "physical". I cannot imagine that the Minister will have any difficulty in accepting that. If the amendment was agreed to, section 1(1)(a) would read: “the wilful, reckless or negligent infliction of pain, distress or physical injury on, or failure to prevent such injury to, the child”.
In a sense the word "distress" would cover much of what I have been trying to deal with in amendment No. 1. I ask the Minister to look openly at both amendments. He will recognise that they do not create any offence to the integrity of the interpretation of the word "abuse" as it is outlined. It simply expands it slightly. It is completely within the spirit of the Bill and certainly should be in line with the contextual outline of the Bill, which the Minister provided on Second Stage.
It was not until I saw Senator O'Toole's amendment that I was reminded of the psychological damage of fear and distress. Every time one reads about a suicide, one thinks, "If only somebody could have put their mind at rest." It is usually a question of putting the mind at rest from a fear of psychological rather than physical damage. In that respect, Senator O'Toole's helpful amendment will add to the Bill and I urge the Minister to give due consideration to it.
Mr. Ryan
Underlying all the horror of physical abuse, the thing that victims of such abuse talk about most is the continuous, 24-hour a day fear. That is what still haunts them and causes them greatest pain. The fact that people were frightened and bullied is what created the silence that lasted for so long. While it is not unique to this country, all of us who went through the primary and secondary school system over the last 40 or 50 years can cite chapter and verse about fear. This is so, even for people who, fortunately, were never physically abused but who knew full well the degree of terror that people could induce in others. I recall that in one class I was not able to write my own name because I was so frightened of the teacher. Consequently, it would be wrong to omit some reference to that sort of malicious threat of the possibility of violence.
The commission uses language like "emotional abuse" which is as much a part of child abuse as the physical or sexual kind. It is also a part of the victims' need to tell their stories and be recognised, however late it might be. The Minister should give serious consideration to this amendment.
I concur with the sentiments expressed by Members with regard to the effect that fear of injury can have on the mental health of people because of pressure they may have been subjected to at school. My understanding, however, is that this matter is covered in the Bill. It has been well taken care of in the legislation and it will be a matter for the commission to address the issues that come before it. Perhaps the Minister could cover that point.
I understand the concerns of Senators in this regard. I wish to assure them that pain, suffering and mental distress are covered fully in the Bill. As regards the point made by Senator Ryan, the commission will have to decide on that issue. The Senator said that all of us suffered fear at school at some time or other and I know that is true. However, we are not investigating that matter at this stage. We are investigating cases of serious physical and mental abuse, both of which are covered in the Bill. We are talking about whatever the commission regards as being serious and we will give it carte blanche on that matter. It is open to the commission to decide upon that and I have no doubt it will. To date, the commission has shown itself to be highly effective in the work it has done on a non-statutory basis.
In preparing the Bill I was conscious of the need to provide a wide definition to cover physical, sexual and emotional abuse and neglect, as recommended by the commission in its report on its terms of reference. The approach we are taking is absolutely in line with what the commission asked us to do. The commission has studied the area, has worked on it and has put forward recommendations for legislation to establish it on a statutory basis, as it was asked to do. It is anxious to get on with the work and is ready to proceed.
The commission wanted the broadest possible terms of reference which would be all inclusive. One of the dangers is that if we begin to break it down and mention one thing or another in particular, it could put a different aspect on a position to a greater or lesser extent. Essentially, therefore, we have left it open to the commission and we have covered all the aspects. It is important not to confuse this with matters going on in other fora such as the Statute of Limitations and the questions of sexual versus physical abuse. It has powers now to examine the issue of physical as well as sexual and mental abuse and has, in effect, a very wide brief.
We should be careful about extending the definition to such an extent that we sow seeds of doubt and confusion relating to the powers of the commission. This is likely to arise if we try to particularise any and every type of suffering inflicted on children. It would be almost impossible to avoid missing some form of abuse and it would be entirely impractical to list all those of which we could think. Of course the infliction of fear or injury on a child or failure to prevent or redress such fear is not acceptable. That can be very serious and it is open to the commission to decide on that issue. In so far as these abuses occurred, they are included either within the definition of physical abuse or in paragraphs (c) and (d) of subsection (1). It is a matter for the commission, as I said, to decide. It will have advisers.
These are the main points relating to this issue. The Senators need not be concerned about that. I understand Senator O'Toole's point in highlighting this issue but I assure him it is covered. It is put this way because the commission asked us to give it the widest possible brief which is why it is left in those wide terms.
I am concerned about one aspect. I listened carefully to what the Minister said and I see the logic in much of what he is saying, but if I were to boil my two amendments down to one term, that would be the term "distress" or "physical injury". It does not deal with that aspect of it. At least I cannot see it. I do not see that it is dealt with in paragraphs (c) or (d) of subsection (1) unless I am missing the point.
I ask the Minister to put in the term "distress". I have in the second amendment suggested the paragraph should read, "the wilful, reckless or negligent infliction of distress or physical injury". In the context of what the Minister has said, that would meet my needs. I ask the Minister to explain again why the term "distress" could not be put in there and this question of the threat hanging over a child and the child suffering because of the fear of threatened abuse or punishment, whether it be sexual or physical.
Distress is a mental disturbance or upset which is covered in the widest terms. If we start to break it down and parse it, we will get into legal difficulties ultimately. The purpose was to leave the terms as the commission requested on a broad basis but to make sure, and here there is a difference from other fora, that one is covering physical, sexual and mental distress and failure to care and other aspects. It is a very broad brush for the commission who will decide where these were serious or totally incidental or were not in effect serious. That is what we are trying to do.
Acting Chairman
Is the amendment being pressed?
I accept the Minister's assurances that all I am seeking to have written in words can in fact be dealt with and he has said that. That is important. I am not fully convinced but I have to take his good offices on that. He tells me that these issues can be dealt with and I accept that it states physical, sexual and mental abuse. Therefore, he is saying that the mental abuse would cover issues such as threats and the fear of such. I accept his good offices on that, on which basis I will not press the amendment.
Mr. Ryan
Nobody disputes the Minister's goodwill on this issue any more than they do their own, but I am a little concerned that there is an assumption that mental health covers emotional distress. I am not sure that every doctor would agree. Perhaps this is because I am married to a psychiatrist. I am not persuaded by this assumption and this could end up in the High Court involving situations where people suffered profound emotional distress.
It is interesting that the commission used the phrase "emotional abuse" in terms of the definition of abuse in its report on the terms of reference. The term "emotional abuse" is missing whereas the terms "physical abuse" and "sexual abuse" are there. The term "emotional abuse" is left out, though I am sure there is much advice from the Attorney General about why it could not put in the term "emotional abuse". I am not persuaded that emotional and mental mean the same thing, nor are they dealt with by the same branches of the medical profession. Mental health is generally dealt with by psychiatrists but many of these emotional problems will be dealt with by counsellors, therapists and other kinds of professionals.
I do not wish to keep the House here indefinitely and I accept that the Minister is endeavouring to do what we all want done, but I am still not entirely convinced.
That is why a judge is in charge of the commission. In effect the judge has been consulted on the wording and is perfectly happy with it. That is further assurance.
Mr. Ryan
I am happy with that.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Acting Chairman
Amendment No. 3 in the name of Senator Ryan is out of order as it involves a potential charge on the Revenue.
Amendment No. 3 not moved.
Question proposed: "That section 1 stand part of the Bill."
Mr. Ryan
I raise the issue which I endeavoured to raise by way of an amendment. The point has been made in submissions, which everybody including the Minister has received, that the definition of 18 as the age of majority is quite recent. The age of majority 60 years ago when the current official terms of reference of this commission begin, and they can go back further, would have been 21. My concern is that a 19 year old in the 1940s would have had an attitude to authority which would be more like that of a 14 or 13 year old today. It is quite conceivable that a 19 year old could have been a victim of abuse in the period with a different system of authority than most of us cannot imagine now.
I realise that the commission recommended 18 but I know some of the victims of abuse have stories of people over 18 who were still in institutions being cared for and who did not have the legal status of an adult say 40 years ago. I am also intrigued as to why changing 18 to 21 would impose a charge on the Revenue. That is not for me to argue about here but I can normally follow these matters. The reason why changing from 18 to 21 would impose a charge on the Revenue is a total mystery to me. I am not questioning the Cathaoirleach's ruling, I am simply recording my confusion.
Acting Chairman
We can discuss that matter in the Cathaoirleach's chamber if the Senator wishes.
Mr. Ryan
County Roscommon is taking over the Cathaoirleach's chamber.
The Senator will be aware that the commission, in considering the terms of reference, recommended that 18 be the cut-off age. That was its proposal in the first instance. I am aware that prior to 1985 children did not reach the legal majority until they were 21. However, few if any young people remained in institutions such as reformatories, industrial schools or regular schools even before 1985.
In the circumstances I propose the Bill be left unamended and that the commission consider issues surrounding the abuse of children and young people up to the age of 18. While the legal definitions of a child have their place, they are ultimately somewhat artificial legal creations. I feel that the commission is concerned with children and young people who were at a particularly vulnerable age when abused. The commission considered the position and has opted for a cut-off of 18. I suggest this is a reasonable position. The Government accepted the report in toto and did not interfere with it in any way but took it as the commission recommended.
Mr. Ryan
It may need a drafting amendment, but line 15 contains the word "thing" without either "a" or "the" before it. The phrase relates to the definition of a document: " . . . being stored electronically or in any other manner and also includes thing . . ." Should there be an "a" in front of "thing"? It is just a detail.
If someone was abused at 16 and subsequently at 19, the commission could probably deal with that situation anyway.
Mr. Ryan
I am assured, though I cannot find it, that the question of fostered children is covered by the Bill. I find it difficult to figure out how that issue is covered, but from what was done in the Dáil others have accepted it is covered. There was a genuine concern which everyone shared that children in institutions were fostered out and seriously abused. I have read the Bill and its definitions carefully, but I am still not clear how it extends the law to children who were fostered out, often for long periods, from insti tutions. The Bill largely refers to children in institutions and there is a concern that children who went into institutions were sent to foster homes where they were abused.
Those cases of children being sent out for fostering from institutions are covered. Section 1(2) states:
References in this Act to abuse of children in institutions or which occurred in institutions include references to any case in which abuse of a child took place not in an institution, but while the child was residing or being cared for in, or attending, an institution and the abuse was committed or aided, abetted, counselled or procured by, or otherwise contributed to by an act or omission of, a person engaged in the management, administration, operation, supervision or regulation of the institution . . .
The child would be under the care of the institution if he or she were fostered out from the institution for a short or long term or for work. That was amended in the Dáil to make it clearer that such cases were covered.
Mr. Ryan
I do not want to delay the House, but the Bill states, " . . . while the child was residing or being cared for in . . .". If that stated, "cared for by the institution", I could accept there is no ambiguity. It is pushing the meaning of language a little to suggest that "residing or being cared for in" extends to children who were under the care of an institution though not residing in it. I do not want to be contentious.
I understand. One must look separately at the definition of institution, which states that that definition shall include
. . . a school, an industrial school, a reformatory school, an orphanage, a hospital, a children's home and any other place where children are cared for other than as members of their families . . .
The only place excluded is the family.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
Everyone is co-operating to get this Bill into law and nobody wants to slow down the process. The victims want this up and running. The Bill states that the Minister shall by order appoint a day to be the establishment day for the purposes of the Act. Can the Minister indicate his views in this area?
This section relates to the Minister determining the day of the establishment of the commission. I will do so immediately after the signing of the Bill into law by the President in consultation with Judge Laffoy, the commission's chairperson. It is expected to get this up and running possibly by mid-May – as early as possible, in other words.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Mr. Ryan
Does the sentence, "The Commission and its members shall be independent in the performance of their functions", have an institutionalised significance? What does it mean? I know what everyone wants it to mean, but what does it mean in practice? Does it mean there can be no communication between Government and the commission other than through the formal processes of the commission? I know it is there for the best of reasons, but how can those who have been the victims of abuse – and those against whom allegations have been made – understand what this means in terms of independence?
Section 3(4) states that the when the Minister is satisfied, after consultation with the chairperson, that the commission and the committees have completed the performance of their functions, he or she may by order dissolve the commission and the committees. The point was made to me that there should be no dissolution of the commission as it is a body corporate with perpetual succession and should therefore always exist on the Statute Book.
I am not sure what the precedent is for this and whether it is normal to include a provision, when setting up a commission, that that commission may be dissolved when its work is done, but this should be taken into account. This may be the normal language which is always used, but perhaps there is an explanation.
It is important to emphasise that, once set up, the commission will be totally independent of the Government and will operate on its own under the terms of the statute. It will make an independent report at the end of the day, but that will not be a report to Government. It will be a report to the people – the independence is carried that far. An independent group will often report back to the Government when it completes its work, but in this case it will report to the people and presumably the Government will get a copy at the same time. This will be a report from the commission to the people.
Once it is set up the commission will have access to all the records required. Essentially, we are giving it the powers of a court to carry out such an inquiry. During the Dáil debate on the Bill there was a suggestion that we include a requirement for an interim report. I was reluctant to interfere in any way with the commission in that regard but having discussed it, it was suggested there would be an interim report after six months. I finally agreed to an interim report at the end of one year, which I thought was reasonable because by that time the commission should be in a position to make an interim report. However, the commission may want to make an interim report after three, six or nine months, which is a matter for the commission itself. That is the only stricture. The Bill provides that if the commission wants to go beyond two years, it can apply for an extension.
Once the Minister is satisfied the commission has completed its work, he or she may order its dissolution, but this will not be done without consulting the chairperson. A Committee Stage amendment in the Dáil also provided for parliamentary oversight in that area.
Question put and agreed to.
SECTION 4.
An Leas-Chathaoirleach
Amendments Nos. 4, 7 and 18 are related and may be discussed together by agreement.
I was confused because my list of the amendments grouped together states that amendments Nos. 4, 17 and 18 are to be taken together. I could not see the relevance of amendment No. 17 to the others.
An Leas-Chathaoirleach
Amendments Nos. 4, 7 and 18 are to be taken together. There is an error on the grouping list – amendment No. 17 should read amendment No. 7.
I move amendment No. 4:
In page 5, subsection (1)(a), line 45, after “have” to insert “allegedly”.
These three amendments are similar. Amendment No. 4 proposes to insert "allegedly" in order that section 4 (1)(a) would reads “to provide, for persons who have allegedly suffered abuse”. Amendment No. 7 proposes to insert “allegedly” in section 4(6)(a). Amendment No. 18 proposes to insert “ALLEGATIONS OF” in the Title and it would read “TO INQUIRE INTO ALLEGATIONS OF CHILD ABUSE”.
The reason for these amendments is simple and does not require a long argument. They are intended to prevent the commission having to establish there was actual child abuse before it investigates it. I want to ensure the commission can act on the basis of reports, affidavits or statements made by people without having to obtain evidence to prove the abuse, legally or otherwise. There is a gap there about which I and others are concerned.
If one does not include the word "allegedly", abuse will have to proved before it is investigated. In most cases allegations of abuse are being made. On that basis, "allegedly" should be included in the Bill in order that the work of the commission is not impeded in any way. It is an impossible burden on victims if they must prove what has happened to them before it is investigated. These amendments are clearly in line with the spirit of the Bill.
Other groups are concerned about this issue. The Catholic and Primary School Managers Association, which has welcomed the establishment of this commission, shares my concern that if we do not include "allegedly" and "allegations", the burden of proof is on the victims. This seems to me to put the cart before the horse.
I support Senator O'Toole. The explanatory memorandum states:
The Commission will have three primary functions. Firstly, to provide for people who suffered abuse in childhood in institutions a forum in which they can tell of that abuse. Secondly, to inquire into allegations of abuse and to determine its nature . . .
It does not appear that this is covered in this section of the Bill. Perhaps it is covered elsewhere in the Bill but Senator O'Toole's amendment proposing that the Bill would read "to provide, for persons who have allegedly suffered abuse" seems to be in line with the explanatory memorandum.
Mr. Ryan
I must register my dissent. I would be reluctant to tell people that they are talking about an alleged abuse. People know if they were abused. The allegations are made about other people, not about the abuse. Naming an individual as an abuser is an allegation but it is not correct to imply to someone who goes to a commission to describe their recollection of what happened to them as a child that it was an alleged abuse, when they are clear in their heads that it occurred.
I accept Senator O'Toole's concern. It is correct to use the word "allegation" about someone accused of perpetrating abuse but to include it before the description of the stories of people who have suffered so much suggests to a degree that perhaps it is fantasy. I know that is not what Senator O'Toole intends. There may be another word which I cannot think of which could apply. However, to propose the wording "to provide, for persons who have allegedly suffered abuse" moves us backwards to a time when everyone spoke about people who had allegedly suffered abuse. I am not in favour of the amendment.
Senator Ryan has highlighted an important aspect of the amendments. They present some difficulty. On the one hand, it is true to say that accounts of abuse are allegations of abuse until they are proven. The commission will work through two committees, a confidential one where people will tell their stories and an investigative one which will investigate, in detail, the allegations of abuse. The amendments attempt to deal with that issue, that they are allegations until they are proven. However, we are concerned with the functions of the Commission to Inquire into Child Abuse – it is not the commission to inquire into alleged child abuse. This is the point highlighted by Senator Ryan. It is well established that there was abuse. We have some 40,000 files ready for the commission, detailing serious physical, sexual and mental abuse, which must be treated as such.
I understand the unease of Senators about allegations but there are strong protections for those against whom allegations are made. The Bill provides strong protections, including natural justice and legal representation. Others have complained the protections we are providing are too strong but that is as it should be. The commission will be well able to deal with this.
We know that child abuse occurred and the criminal courts are establishing this with horrifying regularity. This commission was set up to inquire into what we know occurred. We do not as yet know the extent, the circumstances or the causes of the abuse. The commission will give people who have suffered abuse an opportunity to speak about it, as that can have a therapeutic effect. While false accounts may be given to the commission, overwhelmingly the accounts given by people who were abused will be true. If a person gives a false account, protections are built into the legislation to ensure the rights of those accused will be duly protected under the normal procedures.
For decades these people have been marginalised and their accounts, if listened to at all, were dismissed. It would be a mistake if the Bill explicitly reflected the view that people claiming to have been abused are mistaken or, worse still, lying. The commission ultimately will decide on the truth or otherwise of any account. Most of the proceedings of the commission relating to such personal issues will be held in private. The commission will publish a report in which it will name the institutions and abusers where the commission establishes abuse has taken place.
From the perspective of people who are concerned that they will be accused, they will read the Bill as an implicit statement that all accounts of abuse will be believed. That view is taken in complete disregard of the substantial inquiry process built into the Bill and the unimpeachable constitutional rights such people have to due process and natural justice. I understand that such people may be upset at the implication, but I ask the House who is the stronger party, a former resident of an institution who is claiming abuse as a child or his or her alleged abuser or the employer of that person?
On balance, it would be a mistake to insert words which from a legal standpoint are not necessary, but which would be hurtful to people who are already vulnerable. It would be a mistake to insert the words proposed in amendment No. 18 in the Title.
I listened carefully to the points made by Senator Ryan and the Minister. I accept the validity of many of the arguments. I accept they understand that the words I propose to insert are not meant to diminish the seriousness of this issue or to revert to the thinking, "Let us not believe the victim", which unfortunately informed much of what we did here for decades.
Another reason the word "allegedly" and the words "ALLEGATIONS OF" should be included is that it might be possible for a person to stop a process on the basis that if a person said he or she suffered abuse at the hands of another person, the named person could attempt to get an injunction to prevent the commission doing its work on the basis that such abuse was not proven but merely an allegation. That is the issue my amendments seek to address, but I accept the Minister's argument on who is the stronger party and that the balance should lie with the victim, provided that due process and constitutional rights are respected.
The arguments the Minister and Senator Ryan made apply in particular to the amendments Nos. 4 and 7, but not to amendment No. 18. Amendment No. 18 is to the Title. The Long Title states ". . . AS AN COIMISIÚN CHUN DROCHÚSÁID LEANAÍ A FHIOSRÚ . . . ". That is a clear statement of fact that the commission will investigate child abuse. That is not making a value judgment about victims along the lines Senator Ryan mentioned. The Title also states ". . . IN THE ENGLISH LANGUAGE, THE COMMISSION TO INQUIRE INTO CHILD ABUSE, TO INVESTIGATE CHILD ABUSE IN INSTITUTIONS IN THE STATE, TO ENABLE PERSONS WHO HAVE SUFFERED SUCH ABUSE TO GIVE EVIDENCE . . . ". The victims are covered by that last clause without the qualitative use of the word "allegedly" in the context of which Senator Ryan expressed reservations. If the Minister conceded to my amendment, the wording of the Long Title would read ". . . TO INQUIRE INTO ALLEGATIONS OF CHILD ABUSE . . . ". That does not make a value judged about the person because the Title goes on to state that the commission will investigate child abuse and enable persons who have suffered such abuse to give evidence. Those clauses cover the aspects mentioned by the Minister and Senator Ryan.
The wording of the Title gives the commission authority to investigate allegations. It deals with allegations, child abuse and enables persons who have suffered such abuse to give evidence. That surely meets all the needs in this area and all the arguments, including the point made by Senator Ryan. On that basis I will withdraw amendments Nos. 4 and 7, but I ask the Minister to reconsider amendment No. 18 which proposes the inclusion of the words "ALLEGATIONS OF" in the Long Title.
Mr. Ryan
There is a great difficulty in this regard because this area is so painful, horrible and apparently extensive that one is inclined to forget that on some occasions in other countries it transpired that allegations made against people were untrue. That does not take from the fact that there was wholesale abuse of children in institutions. The problem with accepting amendment No. 18 is that the Long Title would include the words "TO INQUIRE INTO ALLEGATIONS OF CHILD ABUSE", which would imply that the commission would not investigate situations where child abuse has been proven.
No, that is not what I meant.
Mr. Ryan
If the commission were to inquire into allegations of child abuse, it could be precluded from or experience difficulties in investigating cases where abuse took place, in victims wanting to tell their stories and in investigating what happened and how such abuse was allowed to happen. The inclusion of the words "ALLEGATIONS OF" in the Long Title could preclude the commission from investigating situations where child abuse has been proven. Ultimately this is a matter for the Attorney General.
I understand Senator O'Toole's concern, but I am assured by the Attorney General and Ms Justice Laffoy that what we are doing is correct and there is no fear in that regard from a legal point of view. The Senator is proposing that after the word "INTO"—
I knew someone would say that.
It is a play on capital letters.
It jumped out at me.
I must be more careful about the way I say that word. There is no allegation intended in what I said. The Senator is proposing after the word "INTO" to insert "ALLEGATIONS OF". The same argument applies to this amendment as applies to the other amendments. I am advised legally that the Senator need have no fear about what is being done in this regard. Everyone concerned accepted that the non-statutory body was the Commission to Inquire into Child Abuse and there has been no problem with that title. As the commission is being established on a statutory basis, it is preferable that it should retain that title.
On the question of natural law and making sure that nobody is in a position of being considered guilty until they prove themselves innocent, and not just the other way around, nobody should be found guilty by accusation. A function of the commission is to assess whether and to what extent child abuse has occurred in the various institutions which come under the remit of the commission and then to determine how best to deal with the matter. The proposed legislation seems to indicate that findings that abuse occurred have already been made on the basis of unsubstantiated evidence. To ensure due process, it is imperative that findings should result from an evaluation of the evidence. It should be noted that if only those who have suffered abuse may recount their experiences, before such evidence is heard the committee must be satisfied that the abuse occurred.
That brings us back to the point of being innocent until proven guilty. I understand exactly the point Senator Ryan and the Minister have made, that there has been such an horrific series of complaints – the Minister said there were about 40,000 files – but I would hate to think that anybody was accused and automatically found guilty on the basis of accusation only. We should be very careful to make sure that the innocent are protected. I want my mind to be put at rest on this issue and I believe Senator O'Toole's proposal of the word "allegedly" would go a long way towards addressing the matter in that we would not assume that an accusation automatically implied guilt.
Senator Quinn wants to ensure that the innocent are protected. That is a constitutional requirement and it underpins everything in the Bill. In terms of the handling of these cases, due process must apply. The rights of the individuals must be respected and the individuals will be given legal assistance to ensure that happens. From that point of view the Bill is quite generous in ensuring that the constitutional position is observed.
Senator Quinn mentioned the 40,000 files but that does not necessarily mean 40,000 people were abused. A number of allegations are made every week – approximately 15 – but they are being provided to the independent tribunal which will investigate them. I want to make it clear that that does not mean there are 40,000 cases about which allegations have been made, because there are not.
We are talking here about the title of the commission. What we have been doing up to now is investigating the cases of abuse and I believe in that sense that the title is correct. It is the Commission to Inquire into Child Abuse. That is what is has been up to this time and that is the reason for the commission, to inquire into child abuse.
The explanatory memorandum states that the second purpose of the commission is to inquire into allegations of abuse and to determine its nature. On that basis I assume that it has the ability to inquire into allegations.
Yes.
To conclude on this matter I want to refer, in reverse order, to what is stated in the Long Title. I have noted the point the Minister just made, that allegations can be investigated. It is good to hear that but I cannot see how it arises out of the Bill. The Bill will enable persons who have suffered such abuse to give evidence to committees of the commission. That is a straightforward fact. It also states that it will investigate child abuse in institutions in the State. There is no doubt about that. It also states that it will inquire into allegations of child abuse. That means the commission will inquire into allegations of child abuse, and will enable persons who have suffered such abuse to give evidence, among other things. It does not prevent anything happening. It makes it quite clear that allegations can be investigated.
I will not push this amendment to a vote. The Minister has said that the Bill allows the commission to investigate allegations. That was the purpose of my proposal in the first place. I am not convinced that somebody could not stop an investigation on the basis that it was an unproven allegation. If the word "allegations" were included, it would strengthen the power of the commission. The Minister has told us that allegations can be investigated and that that is the view of the Attorney General. If the Attorney General, the chief law officer of the land, tells me that allegations of child abuse can be investigated under the terms of the Bill, I will not press my amendments.
By way of brief explanation, "child abuse" is a much wider term than "allegations" because it will investigate all the other events that might have gone on in that connection, including the management and supervision of the institutions, not only the specific allegations but the implications of those in every other sense.
Amendment, by leave, withdrawn.
Amendment No. 6 is related to amendment No. 5 and they may be taken together, by agreement.
I move amendment No. 5:
In page 6, subsection (1)(b)(iii)(II), line 13, after "institutions" to insert "and the role of the State or any of its organs (including the Minister, his or her Department and the courts)".
This is a substantial issue and one which we cannot avoid. I want to read into the record of the House the particular rule of national schools which was in operation prior to 1982. Rule 130 states:
130.(1)Teachers should have a lively regard for the improvement and general welfare of their pupils, treat them with kindness combined with firmness and should aim at governing them through their affections and reason and not by harshness or severity. Ridicule, sarcasm or remarks likely to undermine a pupil's self-confidence should be avoided.
(2)Corporal punishment should be administered only in cases of serious misbehaviour and should not be administered for mere failure at lessons.
(3)Corporal punishment should be administered only by the principal teacher or other member of the school staff authorised by the manager for the purpose.
(4)Any teacher who inflicts improper or excess punishment will be regarded as guilty of conduct unbefitting a teacher and will be subject to severe disciplinary action. [I have made that point regularly in the House.]
That rule will govern many of the inquiries. It is a rule that came from the Department of Education and it affected the way members of my union, for instance, would have operated. That was the code of discipline at the time which allowed for corporal punishment to take place and it obviously informed judgments in a variety of ways. The management groups in schools and teachers themselves would be of the view that this rule is something which cannot be left out of the reckoning in any consideration.
What I propose, therefore, is that on page 6, after "institutions" to insert the words "and the role of the State or any of its organs (including the Minister, his or her Department and the courts)". I do not put this forward as a way of having a go at the Minister's Department or members of that Department. This is about ensuring that the decisions taken by the Department, in the rules it put in place and in the way it investigated any allegations made at that time, are examined.
Amendment No. 6 proposes that the term "including the State and its Agencies" be inserted after section 4(1)(b)(iii)(lll) which refers to “the manner in which those functions were performed by the persons or bodies in whom they were vested”. The State cannot distance itself from those – institutions, individuals etc. – to whom it devolved responsibility. In many cases of physical abuse, victims often state that they were dealt with by a number of people and that certain individuals had used corporal punishment, which was part of schools' codes of discipline during the period in question, but that they never felt abused by said individuals. On the other hand, however, they felt they were abused by others.
Those who operated within the rules and who did not abuse people should be in a position to believe that a distinction is being made. As stated earlier, we are discussing misuse and abuse as opposed to use. It is a fine distinction but as I have indicated on many occasions, the rule under which people were working was clear, namely, that anyone who inflicted improper or excessive punishment would be regarded as guilty of conduct unbefitting a teacher. The question then arises regarding what action was taken if the Department, its agents or its inspectors became aware of improper or excessive punishment during the period to which I refer. This matter must be considered in that context because there is no other way to proceed.
If the approach I advocate is adopted, matters will be laid bare and the Minister's Department will not be in a position to exclude itself, in any way, from this investigation. I accept that the decisions to which I refer were taken in the past and that these must be considered in the context of the period in which they were taken. As the Minister is aware, the rule that I read into the record earlier is no longer in operation but it was in place until 1982. We must ensure that the matters to which I refer can be taken into consideration. We cannot be left with a situation where investigations literally stop with the institutions involved and where the Department is allowed to distance itself from the actions of those institutions. It must be remembered that all authority devolved from the Department in the first instance.
I understand Senator O'Toole's concerns in respect of this area. The Senator is seeking to ensure that the organs of the State – the Departments, the institutions and anyone who was involved in the supervision of those institutions – are properly included in this investigation. Hence, the wide terms used to define "child abuse" in the Title to the Bill.
The matters to which the Senator refers were covered in the Bill, as initially drafted, in the provisions which deal with the supervision and regulation of institutions. However, during the debate in the Dáil I stated that we would elaborate on the definition provided in the Bill. I will now outline what has been done in that regard.
In proposing a commission to inquire into child abuse and in publishing this Bill, it was always the express intention of the Government that the investigative remit of the commission would extend to public bodies and this intention was included in the original definition. Some concern was expressed in the Lower House that this was not clear and an amendment was made which inserted subsection (3) into section 1. I am satis fied that the matter has now been placed beyond doubt.
Subsection (3) provides, in effect, a definition for systems of management, as referred to in sections 4 and 12 of the Bill, and states specifically that these include Departments and other public bodies. The subsection states:
References in this Act to the management, administration, operation, supervision and regulation of institutions include references to such management, administration, operation, supervision or regulation effected, supervised, funded or regulated, in whole or in part, by a Department of State, a vocational education committee established by the Vocational Education Act, 1930, a health board, a local authority for the purposes of the Local Government Act, 1941, or any other public body.
From what section is the Minister reading?
I am reading from section 1(3). The amendment introduced in the Lower House was intended to make the section even more explicit. We were advised by the draftsman that this was not necessary because the issue in question was already covered.
With regard to the specific reference in the Senator's amendment to the courts, I am legally advised that it is constitutionally unacceptable that the commission should seek to review the decisions of courts in individual cases. I am satisfied, however, that the commission can consider the general system which led to the placing of children in care during the period covered by the terms of reference. The Bill, as amended by the Dáil, adequately meets the concerns underlying amendments Nos. 5 and 6.
I listened carefully to the Minister's comprehensive reply and I accept some of the points he made. I accept those points in as much as they refer to section 4(1)(b)(iii)(ll) which refers “the systems of management, administration, operation, supervision, inspection and regulation of such institutions”. As the Minister indicated, section 1(3) states:
References in this Act to the management, administration, operation, supervision and regulation of institutions include references to such management, administration, operation, supervision or regulation effected, supervised, funded or regulated, in whole or in part, by a Department of State.
I accept that this covers the matters I set out to deal with in amendment No. 5. By virtue of the fact that words used in section 4(1)(b)(iii)(ll) are explained in section 1(3), I will, with the leave of the House, withdraw amendment No. 5.
Amendment No. 6 is a completely different kettle of fish and deals with section 4(1)(b)(iii)(lll) which reads “the manner in which those functions were performed by the persons or bodies in whom they were vested”. A vesting of responsibility means that responsibility is transferred to somebody else. That does not, therefore, refer back to the Department involved. The Department has an inspectorate which had the responsibility and authority to do certain things but the provisions in section 4(1)(b)(iii)(lll) excludes the servants or officers of the Department because it focuses on the institutions themselves. As a result, the Department is distanced from the institutions.
I am seeking to amend section 4(1)(b)(iii)(lll) to read “the manner in which those functions were performed by the persons or bodies in whom they were vested including the State and its Agencies”. That is extremely important because most of the vesting was done by the State or its agencies and they vested this authority in the institutions or those who owned or were responsible for operating them. The Minister should accept amendment No. 6.
The functions to which section 4(1)(b)(iii)(lll) refers which could have “contributed to the occurrence or incidence of such abuse” include those outlined in section 4(1)(b)(iii)(ll), namely, “the systems of management, administration, operation, supervision, inspection and regulation of such institutions”. The definition covers what institutions they are and what the supervision was about. I cannot accept the amendment.
The Bill refers to "the manner in which those functions were performed by the persons or bodies in whom they were vested". That is clear but it excludes the State and its agencies, unless it is found that it was something vested in the State and its agencies. However, that is not what happened. The vesting procedure is a clear legal function; it is a legally recognised device where authority and things such as ownership and responsibility are vested in a particular group or structure of management. I cannot see how it refers back to page 5.
I must disagree. My advice is that the functions relate to the systems I mentioned and the manner in which the functions were performed by the persons or bodies. That includes the Department, any of the bodies we have mentioned and any bodies which had supervisory functions. The issue is covered.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 6, subsection (1)(b)(iii)(III), after “vested” to insert “including the State and its Agencies”.
Amendment put and declared lost.
Amendment No. 7 not moved.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
Mr. Ryan
I am a little confused – it could be my fault – about paragraph (3)(d) which states that the report “shall not contain findings in relation to particular instances of alleged abuse of children”. How can that be reconciled with paragraph (a) which provides that the report can contain findings to that effect “and may identify the institution and the persons who committed the abuse”? How can one identify the persons who committed the abuse and not have findings in relation to instances of alleged abuse?
It essentially provides that the findings could name the institution and the abuser but not the person who was abused. One can say that a person or persons were abused but not give findings in relation to the instances of alleged abuse of children. In other words, if the incidences involving Pat Smith, Joe Ryan, Paddy Woods or whoever are being taken further, they will go either to the tribunal or the courts. However, the person who was abused would not be named in that context.
There is something of concern on which the Minister might be able to put my mind at rest. The amendment which I had hoped to put down arises from the amendments to interpretations and from a desire to avoid the possibility of a constitutional challenge to the legislation. It relates to subsection (2)(a) which states: “to alleviate or otherwise address the effects of the abuse referred to in section 4 on those who suffered it. . . ”.
The balance between the work of the confidential committee and that of the investigative committee would be compromised if uncorroborated evidence were to be referred to in the commission's report. The provisions of the Bill in section 10(6) would be breached. It states that a person may not be a member of both committees. Those giving evidence to the confidential committee cannot be cross-examined. There would, therefore, be great danger of contamination between corroborated evidence and unsubstantiated and untested evidence coming forward into the commission's report. The amendment I had hoped to put down suggested that instead of section 4, it should read section 4(1)(b) only.
The contamination that could occur with regard to the two committees could give rise to a constitutional challenge. It is suggested that section 5(2)(b) which reads "to alleviate or other wise address the effects of the abuse referred to in section 4 on those who suffered it" should read "to alleviate or otherwise address the effects of the abuse referred to in section 4(1)(b)". It would strengthen the Bill and ensure it is not open to constitutional challenge as a result of contamination between the two committees.
I have every confidence that the judge, in the first instance, would be conscious of how to handle such a situation. The confidential committee will not name any person or institution. It is a confidential committee. There will be a report to the commission from the confidential committee and the commission will decide how much of that report will be published. However, it will not name any institutions or people.
With regard to contamination, there are explicit measures in the Bill to keep the two committees separate. As a result, the overall report of the commission will not necessarily be just the two reports from the committees. The commission will make its own report based on the evidence and information coming from the two separate committees. Obviously, the information from the confidential committee would be more limited. Its function is mainly healing. However, if somebody attending the confidential committee wishes to make specific allegations and have them investigated, they must go to the investigation committee and start from stage one with their allegation. In other words, it is a fresh process.
Specific measures have been taken to keep the two separate. Ultimately, the judge will decide what will be published in the report, including what information should be included from the two committees and their reports.
Am I correct in understanding that only the commission's report will be published and that the two committees' reports will not be published?
That is correct.
Thank you.
Mr. Ryan
Subsection (5)(b) provides that "the specified period" means "the period of 2 years from the establishment day or such longer period as the Government, after consultation with the Commission, may specify by order". Why is that not with the agreement of the commission? How could it be possible that the Government would not have the agreement of the commission and would still proceed to extend its period? Do I see the hand of the parliamentary draftsman including phrase A rather than phrase B of the good draftsman's guide?
There is nothing sinister about this either on the part of the Government or the draftsman.
Mr. Ryan
I was not suggesting it was sinister.
It may be necessary to extend the period but this will not be done without consultation with the commission. This ensures it will be remembered at the time.
Mr. Ryan
I am aware the Oireachtas is included.
Yes. Paragraph (c) ensures it will be laid before the Houses of the Oireachtas. If the Senator is still here, he will have an opportunity to have a view on the issue.
Mr. Ryan
I will do my best to be here but it is not entirely in my own hands. The phrase "after consultation with" implies that it could be done without the agreement of the commission. Otherwise it would read, "with the agreement of" or "upon the recommendation of". I know this is what the Minister intends.
Theoretically the Government and the people might feel the commission should go further but the commission may not wish to do so, or there could be a change of personnel. In effect, the inclusion of the word "consultation" means nothing will be done without consultation with the commission. In any event, this would arise from consultation with the commission. However, it is ensured that the draft will be laid before each House.
Subsection (3)(a) reads, “may, if the Commission is satisfied that abuse of children, or abuse of children during a particular period, occurred in a particular institution, contain findings to that effect and may identify the institution and the persons who committed the abuse”. Am I correct in thinking this refers to the commission, not the committee? It seems to me that the names should be omitted rather than included at that stage. Perhaps I am confused between the commission's report and the committee's report. Is it the commission which publishes that report?
Yes, only the commission will publish a report.
Subsection (4) is ambiguous and appears to contradict subsection (1). The evidence given to the confidential committee is untested by forensic examination, independent investigation or cross-examination by independent parties. Such findings should not, therefore, form part of the committee's report. The careful choreography and balance of rights between the confidential committee and the other functions of the commission would be fundamentally compro mised without this contradiction and ambiguity being resolved.
I would like the Minister to put my mind at rest on this issue. I am confused between the two committees and the commission. I understand the committees will not publish a report but I still have a difficulty with the investigative committee and the other committee.
This is covered in section 15 which deals with the functions of the confidential committee. These functions are to make findings of a general nature, based on the evidence aforesaid, in relation to the matters specified. Therefore, it would make findings if extensive abuse occurred.
Question put and agreed to.
Sections 6 to 8, inclusive, agreed to.
SECTION 9.
Acting Chairman
Amendments Nos. 8 and 9 are related and may be discussed together by agreement.
Mr. Ryan
I move amendment No. 8:
In page 9, lines 26 to 41, to delete subsections (2) and (3).
There is a widely held view among many people who suffered abuse that it is inappropriate to have officials of the Department of Education and Science involved in staffing the commission. This is not meant to impugn the integrity of anyone working in that Department but it is a standard concern with all groups, including the Garda Complaints Board, that people who have an institutional link with a body which is the subject of the investigation should not be involved in the investigation. Senator O'Toole's amendment seeks to remove the two subsections which provide for secondment from either the Department of Education and Science or the Department of Health and Children. My amendment would have the same effect.
This is of great concern and relates to my question on the independent function of the commission. Without implying even a scintilla of a lack of integrity on the part of individuals, in the eyes of victims the independent function of the commission will be compromised by the presence of people working for it who are staff of an institution, State body or public body which could be the subject of this investigation.
There are other ways to deal with this issue. It is insensitive to suggest that staff of a Government Department which has, to put it mildly, a chequered record on this issue over the last 60 years should be involved. I do not think anyone can say it is fair and, unless the Minister can produce a compelling reason to show it is necessary, it should not be the case. This is quite baldly stated and is a strange omission from an otherwise sensitively handled topic. This is a good attempt at an imaginative institutional response to people's pain.
My former colleague, Pat Gallagher, pursued a case of child abuse in the midlands and did not find the Department of Education and Science open, transparent and helpful. It took considerable leverage and campaigning before he was allowed to see the Department's records. This was not out of concern for the children who had been abused, it was as a result of the institutional inclination to cover its own ass, if I may say so. That was the former Senator Gallagher's experience. This took place just a couple of years ago, therefore it is possible to envisage how it will seem if officials of the Minister's Department, who were engaged in making life as difficult as possible for people are now involved as staff of this commission. This is not right but it is still not too late to change.
I support the case made by Senator Ryan. This is not an attack on the officials in the Department, it is an attack on the record of the Department over a long period. I will not go into the historical facts of the matter but as far as the people who are affected by the Bill are concerned, the Department of Education and Science was one of the bodies which let them down over the years and in which they have very little trust.
I know that the people who would be seconded would, certainly because of the publicity and debate that has surrounded this issue, bend over backwards to ensure that they are fair and impartial in everything they do. We are concerned here with sensitivities and perceptions with regard to what Senator Ryan has rightly called a very sensitive, good and comprehensive Bill. This point will stick in the craw of many of those who will be affected by it. In view of this I ask the Minister to reconsider.
Section 9 provides for the appointment and secondment of members of staff to the commission. The secondment of any member of staff to the commission requires the consent of the commission, which may appoint its own staff, subject to the normal financial consents, which would be provided by the Department of Finance and, in this case, the Department of Education and Science. In addition, the Minister for Education and Science and the Minister for Health and Children may second members of staff to assist the commission.
I understand that, theoretically, it may be said that there could be somebody in a Department who knows or is related to someone involved in this. It may also be the case that a Department may wish to, in the words of Senator Ryan, "cover its ass". The case involving a communication from one secretary general of a Depart ment to another, pointing out that if material was published it could be damaging, was publicised. That material was supplied by my Department to the commission. All the information has been and is being made available.
The amendment has implications for the timescale in which the commission can begin its operations. The commission is running well and it has been very successful in what it has done, to the satisfaction of people on all sides. The people staffing it are the seconded staff. If we decide that seconded staff are not to be provided to the commission we will put an immediate and substantial break on its work. While that may be overcome in time, the commission does not want to break its proceedings. If it does, it can appoint its own staff. In view of this, the question does not arise because it is a matter for the commission. Regardless of who we say may be appointed, the commission will appoint the staff it considers to be appropriate. If it believes that members of staff are not co-operating, or whatever, it can, as an independent commission, let them go or, if seconded staff, send them back. It is necessary to consider the section as a whole. It gives the commission the power to appoint the staff it thinks will be most suitable for the job.
There is concern about possible conflicts of interest because seconded staff belong to Departments which are under investigation. Such conflicts of interest do not arise. In the first instance, the staff concerned will be professional administrators and will be purely administrative staff. They will supply material and will not make decisions. Most of the material has now been supplied. All the files have been made open to the people, and their solicitors, who have allegations or concerns about abuse. Everything is open and transparent and that will continue to be the case.
The commission will continue to operate as it has done, except that it will now be statutorily independent in its operation. That is the main change here. It will also have the powers of a court, which it could not have without this statutory provision. Even in the case of inquiry officers appointed under section 23, these will do no more than record allegations, and the response to them, of persons against whom they are made. The documents will be given directly to the commission, which will then carry out the inquiry.
The commission, or its legal representatives, will conduct the examination of witnesses. It will weigh up the evidence, reach conclusions and draft its report. It is inconceivable that members of the commission would allow themselves to be influenced in such matters by administrative staff.
This issue is a matter for the commission. I have every confidence in it and in Ms Justice Laffoy, who has to date conducted this inquiry in an exemplary manner, and I have no doubt she will continue to do so. She wants us to get on with the job and I am anxious to facilitate the commission in that regard.
Ultimately, it is for the commission to decide whether it wants to recruit its own staff or have seconded staff. It has worked so far with the seconded administrative staff. It will require a legal team, or whatever, to pursue the investigations. To date, the commission has been very satisfied with the staff working for it. They have done a very efficient and effective job.
I am satisfied the commission will be in a position to deal with any incident that could arise because this legislation will provide it with the power to select staff from wherever it wishes or to use seconded staff, as it has been doing to date. To change that would damage the work of the commission.
It was important to make this point, but I am impressed with the Minister's reply. It is important that the commission is made aware of the sensitivities, but I believe the Minister is right when he says we need to get on with this job and we should not delay it. I have confidence in the sensitivity of Ms Justice Laffoy and of the commission on this point and I am happy to accept the Minister's assurance.
Mr. Ryan
I do not want to get involved in argument on this issue because it is far too important, sensitive and urgent. For the Minister to say that the commission can appoint staff is less than complete. It can appoint nobody without his approval and that of the Minister for Finance.
That is a routine clause that is required.
Mr. Ryan
Routine clauses should not be in legislation like this because this is the most non-routine Bill we could be dealing with. The clause was inserted because it is standard. Why does the Minister for Finance have to become involved in the staffing of the commission?
That arises mainly because under the Constitution allocated funds are approved by the Minister for Finance. Anything paid for by the public purse must comply with this procedure. It is a standard clause and is part of everything the House does. The commission is under the aegis of the Department of Education and Science. Given this, both decide on what the commission does and how it expends moneys. Sanction would then be given to the commission. I have never heard of a commission that did not get the money it needed to do its work in this way. It is a routine procedure, but it is required because taxpayers' money is being spent and that is covered by constitutional provisions that apply to all Departments, especially the Department of Finance. It is a routine technicality.
Mr. Ryan
I do not want to delay the House but perhaps the Minister could tell me where in legislation Mr. Justice Flood is required to seek the permission of the Minister for Finance to incur expenditure. I do not believe he is. I do not believe a tribunal of inquiry must seek the permission of the Minister for Finance to employ staff. I do not believe it is a universal application. This was probably included by mistake and should not be in the Bill. At most it should stipulate the Minister for Education and Science, and the Minister for Finance should have no say in the staffing of a commission of this nature.
This does not deal with the people involved. It is a routine provision. The Senator mentioned tribunals of inquiry and they come under the Attorney General's office, with finance provided by the Department of Finance through that agency. I can either research that for the Senator or he can inquire himself when justice legislation is being debated here. Either way, he will find that there must be accountability in every situation. There have been debates in this House about accountability on many occasions. It permeates all areas.
Mr. Ryan
The Minister should not go off on tangents. It is too important for that.
That is the only reason the provision is included. The suggestion appears to be that there is some sinister reason why the provision has been included. There is none. We are dealing with a very sensitive and dangerous situation. We should not give ideas to people who do not understand the functioning, detail, intricacies and technicalities of the State, unless one is prepared to explain for hours how the State system works. That is the danger in this situation.
We are dealing with people who have been seriously abused and hurt, as the Senator said. I have told him that, from the start, it was accepted by the other House and by the Opposition in the Seanad that we were setting up an independent commission to do the best job for those people. That is what we are doing. We are now going through the Bill line by line and discussing it in detail. This provision is a standard procedure in Bills and we will only confuse people if it is discussed in too much detail.
The commission is not confused. It has received what money it needs and is guaranteed any further funding it needs to do its job. Money must be disbursed through some agency. The commission is being established by the Bill which is the responsibility of my Department. Perhaps the Senator would like me to go away and to start again at square one with another Minister if it bothers him that I am bringing the Bill through the House. If he does not mind, then he should accept that the Department of Education and Science is responsible for the legislation and funding comes through that Department from the Department of Finance. In other cases the Senator raised, it may be the Attorney General and the Department of Finance, and in others, it may be just the Department, such as the Department of Agriculture, Food and Rural Development. That is the way the system works. It does not create problems but it is a reflection of accountability.
Acting Chairman
Is the amendment being pressed?
Mr. Ryan
I am at a loss because I liked neither the tone nor some of the content of what the Minister said. If I raise issues on legislation, I do it because they are serious. The issue of the staffing of the commission is one of considerable concern to many people. The one compelling argument the Minister makes is that the commission is happy to have seconded staff. However, the commission is not infallible, and many victims of abuse are less than happy with staff being seconded because some of them have had experiences of trying to get Departments to take their allegations or history seriously. Therefore, there is a sensitivity. I want to be sensitive and the Minister should be sensitive. However, it is not for me to decide whether amendment No. 8 is being pressed because it is in the name of Senator O'Toole.
There is only one flaw in the Minister's argument and that concerns the word "such". I accept the point that public spending must be approved under the Ministers and Secretaries Act by the appropriate Minister and the Minister for Finance. The problem is the terminology where the Minister can decide about such and so many persons. That goes slightly against the run of the Minister's argument. I listened carefully to what he said, which was that the provision dealt with the spending of money, not with people. That was the basis of our concern. If the Minister gives a clear assurance on his honour that Ms Justice Laffoy is happy with this arrangement and that he will not interfere with the personnel the commission chooses to appoint, then I can do no more than accept that. The Minister is on record as having said it and, on that basis, I will withdraw the amendment.
However, I wish to be clear that I agree with Senator Ryan. I agree with the term "so many persons" as that is where spending is involved. It is the term "such and so many" which is the problem. The word "such" suggests approval is needed of the person employed and that is what bothered me in the first place. However, if the Minister states that the commission and Ms Justice Laffoy are happy with that arrangement and if he gives us an absolute commitment that he will not interfere with the determination of who will work for the commission, then I will withdraw the amendment and observe how the commission operates.
I assure the Senator that this does not empower the Minister to distinguish between persons. The word "such" in obtaining financial approval is to cover such types of persons as may be employed. They may be administrative, legal or otherwise. The term "so many" covers the number of such persons.
I am happy with that.
I am advised the Senator's understanding is correct.
Amendment, by leave, withdrawn.
Amendment No. 9 not moved.
Section 9 agreed to.
Sections 10 to 12, inclusive, agreed to
SECTION 13.
Acting Chairman
Amendment No. 11 is cognate on amendment No. 10 and both may be discussed together.
I move amendment No. 10:
In page 11, subsection (2)(a), line 34, after “abuse” to insert “after a process which respects the constitutional rights of all persons concerned”.
I tabled amendments Nos. 10 and 11 on the basis that it was important to find a balance and that there was due process and a safeguarding of constitutional rights. I have decided not to press either amendment because I have listened to the assurances and commitment given and I would not want it to reflect on the high reputation of Ms Justice Laffoy. I accept, and I am sure those who represent the victims will accept, that she would certainly see to it that the issues I raise in the two amendments would be dealt with. I would not like anyone to think I would be of the opinion that Ms Justice Laffoy would not respect the constitutional rights of all persons concerned. I know she would respect them. For that reason, I will accept the assurances given previously and will not press either amendment.
Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Section 13 agreed to.
SECTION 14.
Acting Chairman
Amendment No. 13 is cognate on amendment No. 12 and both may be discussed together by agreement.
Mr. Ryan
I move amendment No. 12:
In page 12, subsection (1)(d), line 24, after “oath” to insert “or affirmation”.
In the interests of speeding up the processing of the legislation, I will not press either amendment.
The parliamentary draftsman assures us it is covered.
Amendment, by leave, withdrawn.
Amendment No. 13 not moved.
Section 14 agreed to.
Sections 15 to 20, inclusive, agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."
Mr. Ryan
I have a small query about this section. The section states: "a person who gives evidence before the Investigation Committee or to a person. . . . .shall not be entitled to refuse to answer any question put to him or her". This is pursuant to section 14(5) where a person travels outside the State to obtain such evidence. There is not much we can do about people outside the State. I wonder what is the point of including such a provision. If the person being questioned lives outside the State, he or she can decide what they will or will not answer.
I presume such people could decide whether they want to attend in the first instance. The committee is quite significant and powerful but incidents could arise where people would not be prepared to come before it.
Question put and agreed to.
Section 22 agreed to.
SECTION 23.
I move amendment No. 14:
In page 17, subsection 2(a), line 3, to delete “, at the option of the person,”.
I am not sure what is intended in this section. Section 23(2)(a) states “requesting the person at the option of the person to provide him or her with a statement in writing of the evidence that the person proposed to give to the investigating committee . . . ” It seems that if a statement is required, it should be provided. The words “at the option of the person” could present a block to the committee's work. I do not want a situation to arise where the commission's work or the rights of the accused could be hindered in any way by the fact that a particular statement would not be available. What is the thinking behind the words “at the option of the person”?
The function of an inquiry officer under the Bill would be merely to sketch out the ground for the commission. The objective is that before the commission would hear evidence, it should have reasonable knowledge about what allegations could be made and how those would be responded to. This will limit the extent to which witnesses will have to undergo oral examinations and will also point the commission towards areas of inquiry which are likely to be most effective.
The inquiry officer will not have power of compulsion over any witness; the process will be entirely voluntary. If a witness refuses to co-operate, the commission has a full array of powers to enable it to compel co-operation. In the context of voluntary co-operation with an inquiry officer, a witness may choose to provide a written statement or to provide an oral statement which will be written down. It should be borne in mind that many witnesses will, due to their backgrounds, have poor literacy skills. Overall, the intention of this provision is to assist such people.
I understand the Minister's point and thank him for clarifying the matter. I was concerned that a person could simply refuse to provide a statement. Is the Minister saying that this provision will only apply at the initial stage of the investigation?
Yes.
That makes sense. It is important that victims would not feel threatened in any way if they feel they have something to say. I thank the Minister for his explanation of this matter. The fact that we have not pressed amendments this morning is a reflection of our belief that it is hugely important that the commission's work would get under way as soon as possible. The victims certainly want to see this happening. We have received assurances from the Minister and will hold him responsible for ensuring that those are met. Like the Skibbereen Eagle, we will watch this matter closely and if victims' representatives feel matters are not progressing properly, we will raise the matter with the Minister.
Amendment, by leave, withdrawn.
Section 23 agreed to.
Sections 24 and 25 agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
Mr. Ryan
This section relates to the power of the High Court to order disclosure of information. It states that where the High Court is satisfied that for the purposes of the exercise of its jurisdiction in relation to the commission or the investigation committee or on application to it in that behalf, it can require the disclosure of certain information where it believes the public interest would be met. Section 26(3) states: "This section does not apply to information the disclosure of which, or the disclosure of which in certain circumstances is prohibited by, or in pursuance of, an act of an institution of the European Union." Why is that provision included in the Bill? It seems to be a peculiar subparagraph to include in legislation regarding a commission to investigate child abuse.
This is really a matter of routine as these matters are covered by European law rather than the law of this State. The above provision is an added guarantee that the commission and the committee cannot be hampered in their investigations.
Question put and agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill."
Mr. Ryan
Section 27 relates to the prohibition of the disclosure of information provided to the committee. Paragraph 9(6) of the commission's report on terms of reference requested that the legislation would expressly absolve the commission and its members, the inquiry officers and the staff of the commission from disclosing to the Garda Síochána or any other regulatory body any information obtained. This section clearly meets that request and includes the exceptions which the commission recommended in regard to the prevention of the continuation of ongoing offences. However, the commission also stated that to achieve this, the Offences Against the State (Amendment) Act, 1998, would require amendment. No reference is made in this Bill to the Offences Against the State (Amendment) Act. Perhaps the Minister will explain why the commission's other recommendations are included in this section but why this specific recommendation in regard to the Offences Against the State (Amendment) Act is not.
That is covered in section 27(1) which states, "Subject to the provisions of this section but notwithstanding any provision of, or instrument made under, a statute or any rule of law. . . ".
Mr. Ryan
We have so much legislation requiring people to make information available that it seems strange that this legislation would not do the same. The commission made specific reference to legislation in regard to which it obviously identified a particular problem. The Offences Against the State (Amendment) Act, 1998, was quite draconian. I would like to have seen the commission's specific concern in regard to that legislation being addressed in this Bill.
As the Senator pointed out, this section was inserted at the commission's request and the commission is satisfied with the wording, about which it was consulted.
Mr. Ryan
I have tabled an amendment to a later section which is probably superfluous in regard to the application of the National Archives Act. Section 7(6) states: "The commission may make such arrangements as it considers appropriate for the making of a sufficient record of the proceedings . . . and in relation to the custody, and the disposal (otherwise than in a manner that would contravene the National Archives Act, 1986). . . " Yet, section 27 states that the records of the confidential committee shall not be records within the meaning of section 2(2) of the National Archives Act, 1986. None of this material should have become part of the archives. It should not have been covered by the 30 year rule as it is far too sensitive and personal. How do the provisions of the two sections to which I have referred sit together?
Section 27 is designed to ensure that there will be absolute confidentiality and that the records of the confidential committee will never become public. In that sense, it addresses Senator Ryan's concerns. It meets the Senator's requirement, in effect.
Question put and agreed to.
Sections 28 to 33, inclusive, agreed to.
SECTION 34.
Mr. Ryan
I move amendment No. 15:
In page 21, subsection (1), line 28, to delete "A head" and substitute "For such period of time up to the dissolution of the Commission, a head".
Section 34(1), which is perfectly reasonable, states:
A head may refuse to grant a request (including a request made before the passing of this Act) under section 7 of the Freedom of Information Act, 1997 ("a request"), if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of the performance of its functions by the Commission or a Committee or the procedures or methods employed for such performance.
While that is fair enough, I am concerned that the Freedom of Information Act does not make any provision for a second judgment at a later stage. If disclosure is refused, it is difficult to see how future provision can be made through the Freedom of Information Act, when the commission has finished its work. There is perfectly innocuous information, the disclosure of which might make it difficult for the commission to operate as efficiently as it should and which, therefore, could be delayed or withheld for reasons of looking after the efficiency of the commission. As this subsection is written, however, that information would be perpetually kept from being disclosed and I think that is a bad idea. The amendment seeks to make it clear that this exclusion of the Freedom of Information Act only applies for such length of time as the commission is working.
Section 34 is intended as a limited derogation from the Freedom of Information Act to the extent that access to records under the Act could prejudice the effectiveness of the performance by the commission of its functions or the methods or procedures employed by the commission. Obviously, once the commission has been dissolved there can be no question of access to records causing any prejudice whatsoever to its functions. The Senator is correct in saying that the derogation would fall once the commission has finished its work. After the dissolution of the commission the Freedom of Information Act will apply fully to the records of the commission, except for the records of the confidential committee as provided for in subsection (4). So the records of the confidential committee will be confidential ad infinitum, as was intended. The assurance sought is there.
Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
Mr. Ryan
I move amendment No. 17:
In page 21, between lines 43 and 44, to insert the following new subsection:
"(5)Such a record shall not be available to any Minister, officer of the public body, or any other person other than by order of a judge of a court of competent jurisdiction, for reasons connected with the functions of the Commission.".
I am concerned that nowhere in the section does it state that within the public body where records of the confidential committee are to be stored, there will be an absolute prohibition on anybody who works within that body having access to those records. Nobody should have access to those records, other than for reasons connected with the functions of the commission. The public will not have access to them and they cannot be published, but there is no guarantee that people who are members of the body – whether it be a Minister or someone else – would not have informal access to those records. I have never been a Minister and I do not know what procedures apply, but it should be made clear that this information is confidential to the body, both internally and externally.
I draw the Senator's attention to section 7(6). This provides for the making of a record of the proceedings of the commission and its committees and for the disposal of their documents after dissolution. The issue of how to dispose of these records could be a difficult one depending on what they contain. I fully appreciate the Senator's concerns. On the other hand there has been strong criticism, repeated in the Lower House during the debate on the Bill, at the apparent absence of significant records relating to the Kennedy report. The requirements of history and students of our society require that the records be kept in a form which makes them appropriately accessible in time. I recommend to Senators that the detail be left to the commission, that we should trust in its good judgment and that this amendment be not made. The commission can make provisions in that regard.
Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 to 37, inclusive, agreed to.
Amendment No. 18 not moved.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
I thank Senators for the detailed way in which they considered the Bill. I was glad to be able to give them assurances in relation to various sections. I thank you, Sir, and the staff of the House, as well as the officials who did all the work on the legislation They have put together excellent legislation which will do what we all wish by providing an independent commission to inquire into child abuse. I thank the commission and Ms Justice Laffoy for assisting us by preparing the reports and informing us of their wishes in relation to the statutory commission. They also consulted with us where necessary. I wish to thank everybody who has co-operated with my Department in this endeavour.
This statutory commission will provide what is necessary for those people who have been seriously abused. It will provide it to both the investigative section and the confidential listening committee. Once the Bill has been signed by the President and passed into law, I will proceed with urgency to sign the commencement order to put the legislation into practice.
There are no hidden agendas of any sort. As the Taoiseach said on behalf of the people of Ireland, everyone is horrified at what has been discovered. We want to get to the bottom of it and see these issues being brought out and dealt with in a sensitive way. We want to see blame being placed where is should be, following a full and thorough investigation. In that sense, there are no holds barred. The legislation is totally in conformity with the Constitution and I look forward to the commission being in a position to get on with its work shortly.
I am delighted with what the Minister has said and I reiterate it. The wish of the House is that this Bill should become law as soon as possible in order that the work of the commission will proceed and clear up the horrible incidents that have happened to people in the past. I thank the Minister, the Members opposite and the Minister's staff for dealing with this Bill so speedily.
Mr. Ryan
This is a painful matter and a very painful process for the country. It will be a very painful process for those who have suffered because business was not done properly in the past. The legislation offers the hope of helping to heal some of the hurt. It is an imaginative institutional response. I suspect it is probably without precedent. The commission's report shows imagination and compassion, and that is the way in which we can learn to do better in the future. If we became a little tetchy, the Minister knows me long enough to know that these things do not last very long. It is good legislation. I wish the commission well and hope it can do its job efficiently and compassionately – balancing both will be a very difficult job for it.
Although I did not debate the Bill from this side of the House, nevertheless, I had the opportunity to read through it. Knowing the intention of the Bill, I wish the commission every success with its work in the future. I am delighted that it will address the concept of the long-term effects child abuse can have and that there is a recognition in the Bill that these effects would have to be addressed. I commend the Bill and thank the Minister for bringing it to the House.
Acting Chairman
I join in the thanks expressed to the Minister and his officials.
Question put and agreed to.