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Seanad Éireann debate -
Tuesday, 7 Oct 2003

Vol. 174 No. 1

Order of Business: Motion. - Commission to Inquire into Child Abuse: Statements.

Ar dtús báire ba mhaith liom leithscéal a ghabháil ar son an Aire Oideachais agus Eolaíochta, Nollaig Ó Díomasaigh, nach bhfuil ábalta a bheith anseo. Tá lúcháir orm a bheith ar ais sa Seanad agus fearaim fáilte ar ais roimh na Seanadóirí.

I welcome the opportunity to address the House on the Commission to Inquire into Child Abuse and related issues. Much has been said and written, especially in the past week, that attempts to portray the actions of this Government in relation to its handling of the issue of past childhood abuse as less than satisfactory. It is necessary, therefore, to remind the House that this Government is the first in the history of this State to listen to the victims of abuse, to apologise to them on behalf of the State and to take positive action to redress the wrongs inflicted on them in the past.

It took 30 years.

The Taoiseach and the Minister for Education and Science have previously expressed their regret at Ms Justice Laffoy's decision to resign from her position as chairperson of the Commission to Inquire into Child Abuse and have stated their appreciation of the work she carried out over the last number of years. I wish to place on record that I too regret that Ms Justice Laffoy has decided to resign upon the publication of an interim report of the commission which is expected in November. I thank her most sincerely for the very important work she has carried out to date and wish her well for the future.

The House will be aware that the Government has appointed Mr. Seán Ryan, SC, as chairperson designate of the commission. Mr. Ryan has a wealth of experience from his practice of law and has very direct experience of the issues relating to past child abuse having chaired the Compensation Advisory Committee. This 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 he will provide excellent leadership and guidance to the commission in its important work. Mr. Ryan's appointment can also be seen as a concrete sign of this Government's commitment to ensuring the work of the commission is completed, that victims of abuse are helped to find peace and healing in their lives and that those responsible for abuse are held accountable.

When the commission was established in 2000, it was the Government's intention that it would carry out its work free of the adversarial environment and legal formality of the courts and that it would have been able to deliver its final report within two years. As time went on it became increasingly obvious 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. In November 2002 the commission in a memorandum to the Department of Education and Science stated that on the basis of its caseload at that time, and even assuming some level of attrition in that caseload, it would not be in a position to deliver its final report for at least a further eight to 11 years. This timeframe was provided by the commission and was based on the resources 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 that action be taken to ensure the report of the commission was delivered as soon as possible. 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 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 €200 million, contributed to the need to review the investigation committee.

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 being 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 is 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 have been extremely useful in considering how best to proceed. There is very much a strong sense that the groups and the Government share a common objective, namely ensuring the investigation committee can achieve its mandate in an effective and timely way. The Government remains committed to ensuring this process of review will be completed as quickly as possible and that appropriate amending legislation will be enacted which will allow for the completion of the work of the commission within a reasonable timeframe and without incurring exorbitant costs.

I would like to turn now to the residential institutions redress scheme and the indemnity agreement that was approved by Government which resulted in a voluntary contribution from the religious congregations to the value of €128 million. There has been much misinformed discussion about this matter, especially since the publication of the Comptroller and Auditor General's report on this issue last week. The Opposition parties have in some way tried to imply that the conclusion of an indemnity agreement with the congregations for €128 million could ultimately end up costing the State in the region of €1 billion. This is not true. The conclusion of the indemnity agreement with the congregations is a separate matter from the decision of Government to put in place a compensation scheme for the survivors of childhood abuse. It was the decision of Government to put in place a compensation scheme for the survivors of abuse that has resulted in a liability ranging from the €508 million estimated by the Department of Education and Science to the possible €1 billion contingent liability identified by the Comptroller and Auditor General.

In so far as I can recollect, all the Opposition parties agreed with the proposals, as outlined in the Residential Institutions Redress Act, to establish such a scheme. Should the Government have done nothing because the exact final outcome of the level of compensation could not be accurately assessed? Should the fact that the final cost could not be estimated accurately and precisely have prevented the Government from doing anything? I do not believe so. The Government considered that the setting up of a system of redress for victims was the right thing to do. There was a serious humanitarian and legal problem crying out for a solution and the Government provided the response to that problem. The only alternative to a redress scheme was to continue to require the victims of abuse to sue through the courts. This was not acceptable to Government for a number of reasons: victims would have to face traumatic cross-examination by lawyers; it would have taken many years for the courts to finish hearing 2,000 to 4,000 cases; and having gone through that trauma the likelihood is that many of the cases would have failed in the courts because of the lapse of time since the abuse occurred.

Concern for the victims was, at all times, a priority in the Government's considerations. Accordingly the redress scheme was set up and is now fully operational. The redress board has received 2,000 applications. To date, it has processed almost 200 cases. The Government continues to believe that it is entirely probable that the final cost of awards will not exceed €508 million that being the amount estimated as the possible cost of the scheme. Following the announcement in October 2000 by Government of the intention to set up a redress scheme, the congregations indicated a willingness to become involved in principle with the Government in the setting up and implementation of the scheme. In this regard, negotiations with the congregations began in November 2000 and continued up to January 2002 at which stage an agreement in principle that the congregations would contribute cash, property and other services to the value of €128 million was reached.

The Government approved the agreement in principle and following further negotiations on the detail of the indemnity agreement, approved the terms of the indemnity agreement in June 2002. It has been argued that the Government let the congregations off lightly by agreeing to a contribution of €128 million. However, it must be remembered that any contribution by the congregations is of a completely voluntary nature. The Government could not impose a contribution on them. Only time will tell whether the contribution represents 25%, 40%, 50% or other percentage of the total cost of the redress scheme.

Irrespective of which way one proceeds, the choice is not simple. The Government made its decision in the best interest of the victims and it was the right decision. The Government embarked on a process to bring healing and closure to those citizens who suffered abuse while in institutional care in 1998. We have been true to our word.

While I welcome the Minister for Social and Family Affairs, it is regrettable that the Minister responsible for this sorry saga is not present. I thought the Minister for Education and Science would come to the House and take the opportunity to clarify the misinformation emanating from his Department and provide accurate information to the public regarding what happened in the past. Unfortunately, he has failed to do so and I ask the Government to take responsibility for this issue from him and his Department because everybody will question the independence of the commission, given the trauma that has been caused over the past few months.

While the Minister for Social and Family Affairs stated that this was the first Government in 30 years to address the issue, there must be a realisation that Fianna Fáil was in single party or coalition Government for much of that time and failed to take action. To verify and consolidate that stance, the Government and long-serving personnel in the Department of Education and Science, who knew about the disturbing features of institutions over the years, have failed to release pertinent documentation into the public domain. There has been collaboration between officials and for that reason I ask the Government to review the continuation of the process within that Department under the auspices of the Minister for Education and Science.

While the Taoiseach's apology was made in good faith, its sincerity rings hollow in the current climate. From the moment Ms Justice Laffoy resigned the chairmanship of the commission to inquire into child abuse on 2 September, the Government has engaged in a campaign of concealment to hide the misgivings of the commission, its role and funding. The victims of child abuse deserve better. The Government mishandled the commission from the beginning. It has serious questions to answer but nobody can get a reply.

Unfortunately, the Taoiseach, the Ministers for Enterprise, Trade and Employment, Education and Science and Justice, Equality and Law Reform – the latter having been the former Attorney General – and the former Minister for Education and Science, Deputy Woods, have all had their say in recent weeks but the position is still far from clear. Contradictions, accusations and counter accusations are the order of the day. Ms Justice Laffoy has been damning in her criticism of the Government. She stated there was no real engagement by the Department of Education and Science with the commission and she was worn out by expressions of contrition on the part of the Department which were not matched by delivery. That is one of the reasons I call for the removal of responsibility for the commission from the Department and the Minister for Education and Science.

Ms Justice Laffoy claims the Department, under the direction of the Minister, did not co-operate with the commission established by the Oireachtas. This is an appalling charge against the Minister and, unfortunately, no member of Government has attempted to explain adequately why Ms Justice Laffoy felt obliged to resign her position. The contribution of the Minister for Social and Family Affairs does not indicate whether further insight will be provided into the reason Ms Justice Laffoy resigned. During recent meetings of the Joint Committee on Education and Science to discuss her resignation and the crisis facing the commission, the Minister for Education and Science could not answer critical questions that needed to be addressed. He was provided with an opportunity then and he has been provided with an opportunity today, but he is still foundering on this issue.

Why did Ms Justice Laffoy feel she had no option but to resign? Why did she say she was worn out by the Department's approach to her commission's work? Why was her request for additional resources handled in such an awkward and obstructive way? Why did the Minister decide to review the commission's remit? Having completed one review, why did he decide immediately to conduct another? This was another planned obstruction to the work of the commission and it was the straw that broke the camel's back in terms of Ms Justice Laffoy's continuing as chairman.

It is a shocking indictment of the Government that she wrote: "The Commission has never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas." This judgment is all the more damning of the Government when it is considered that it was passed by the person it chose to inquire into institutional child abuse. Ms Justice Laffoy is highly respected as a High Court judge and her independence and integrity have never been called into question. She does not have an axe to grind and she was merely seeking to do the job she was asked to do by the Oireachtas.

Ms Justice Laffoy, in her letter of resignation on 2 September, listed the principal ways in which the Government thwarted the work of her commission. The issue of compensation for the survivors of abuse, although raised in July 2000, was not dealt with until 2002. The issue of payment of legal costs to persons involved in the investigation committee, also raised in July 2000, was not dealt with until 2002. I refer to the decision to review the commission's mandate, which stalled its work, and the slow and contradictory way in which the commission's request for resources were handled. Ms Justice Laffoy proposed to allow the investigation committee to work as four committees instead of one. This would have incurred greater initial expenditure but would have resulted in a much more expeditious process for the victims of abuse. This would have alleviated the concerns expressed by the Minister, which ring hollow, and brought the work of the commission to a conclusion by 2005 and not 2011, by which time many people would have passed on, according to the Minister. That is not the case. If the resources were provided, four strands could work together and the matter would be cleared by the given date of 2005.

Before I continue, I wish to state that the Government has disputed the timescale for completion. It based its calculations on the work rate of the commission since its establishment, but it failed to allow for the obstructions and delays for which it and the Department of Education and Science are responsible. If the commission had been given the additional resources it requested and had been assisted in its work by the Government, its work could have been finished by 2005. It should not have been harassed by the Government and the Minister.

On 5 September 2002, Ms Justice Laffoy was told by the Minister, Deputy Noel Dempsey, that the Government agreed in principle to the provision of additional resources. The Minister stated that the commission should proceed with the process of filling new posts in a gradual fashion and on a temporary basis. However, he said that it should employ additional staff on short contracts of about six months. How can it be said that this attitude seriously assisted the commission? Ms Justice Laffoy required long-term commitments to provide the resources needed to speed up radically the work of the investigative committee.

The matter was further complicated by the Minister's announcement, in December 2002, of a review of the commission's work. The Minister said that he planned to conduct a review of the remit of the Commission to Inquire into Child Abuse, to be completed in February 2003. Ms Justice Laffoy wrote in December 2002 that "while the Government decision contemplates a completion of the remit review process by mid-February, its [the Commission's] experience to date does not give it great confidence that this time limit will be met". This was a clear advance reminder of Ms Justice Laffoy's doubts. She stated that there was a very real risk that the review would take longer than anticipated to conclude its work. She pointed out that amending legislation would be required if the review recommended that the remit of the commission be altered, with consequent delays. Ms Justice Laffoy stated that the investigation committee felt it was placed in an impossible position. She had flagged this development time and time again, but nobody cared to pick up on the notice she had given of the difficulties that had arisen.

Ms Justice Laffoy was correct. The review was not completed on time and the commission found itself in the impossible position it had dreaded. The investigation committee was to press ahead with hearing cases and gathering information under the commission's existing remit. If that remit was later changed, however, the commission would leave itself open to the charge that it wilfully wasted public money by continuing with an expensive investigation in the knowledge that the review was taking place.

Ms Justice Laffoy contacted the Department of Education and Science to say she feared that if the commission pressed ahead before the findings of the review became known, it might gather a large amount of information that might subsequently become useless. The Department's response was to state that the investigation committee must continue to discharge its statutory duties and to operate within its existing remit. While the Department was conscious of the resources mentioned by the Minister in her address today, it said that the investigation committee must continue to spend money for a purpose that might transpire to be useless after the review had been completed.

In effect, Ms Justice Laffoy was told not to concern herself with wasting public money. When she pursued the matter, however, she was told in July of this year that it was manifestly in the public interest that costs did not continue to be incurred in respect of matters that might not ultimately be investigated. Is that not confusing? Is it not a contradiction? These events led to the frustration about which we know. Which advice should she have taken? She had no option but to seek legal advice on how to proceed. She received clear advice from a senior counsel who said that there was a strong case to the effect that the committee would be acting ultra vires in making any further discovery or production orders under one statutory remit in the knowledge that the results thereof would be likely to be used only in a significantly different statutory regime. He went on to state that this could be argued to be an improper purpose. The advice of the senior counsel is still valid and will have to be considered by the new chairperson of the Commission to Inquire into Child Abuse.

Where now for the work of the commission? Ms Justice Laffoy asked for additional resources to speed up its work, but the delays faced by the commission have been multiplied further as a result of her resignation. Legislation must be passed by the Oireachtas to make Mr. Seán Ryan a High Court judge to enable him to become chairman of the commission, which is in crisis. Amendments to legislation will have to be considered if changes are suggested following multiple reviews of the work and the remit of the commission. It is certain that this will take time. The Government is delaying the process which it intended to speed up. It claims that the slow pace of the process has caused the difficulties that have arisen. The Minister initiated a review in December 2002 and he went to Cabinet with the heads of a Bill in April 2003, but we have not yet seen what is being proposed.

I did not have time to mention the deal that was agreed with the various religious orders. The deal is nothing short of madness. The response of the orders to what happened in the past involves the payment of €128 million, of a total cost of €1 billion. The Comptroller and Auditor General, who mentioned the figure of €1 billion, is the only public figure to have engaged in a long investigation into this matter. One should take into account the fact that officials from the Department of Education and Science refused to make available letters that were sent as part of the Department's communication with the Attorney General and the commission. What can one say about progress when such action is being taken within a Department?

I will conclude by reiterating my absolute request and demand that we remove responsibility for this matter from the Department of Education and Science in the interests of fair play for those who have suffered for so long. The Minister, Deputy Noel Dempsey, has failed miserably to be constructive in any way during his term of office in the face of the problems that have arisen in this instance. The Department of the Taoiseach should be asked to deal with this matter in an independent manner. This is important so that we can ensure that those who have suffered so much can have the opportunity of telling their stories at least. I hope such people will be heeded and not impeded.

Is mian liom fáilte a chuir roimh an Aire Stáit ag an Roinn Sláinte agus Leanaí. I am delighted that the Minister of State at the Department of Health and Children, Deputy Callely, is present to listen to the statements of Senators in this debate. This important area is close and dear to where he is coming from as a Minister of State. The views he has articulated since his appointment as Minister of State represent a clear demonstration of the commitment he brings to the care of children. I commend him for that. I am aware of the work he has done in relation to the care of the aged.

This debate relates to the Commission to Inquire into Child Abuse and the related issues that pertain to it. I am delighted to have the opportunity to add to this series of statements, having followed the Dáil debate on this topic last week. I confess that I was quite confused, muddled, amazed and puzzled, to put it at its mildest, by some of the contributions that were made by prominent and eminent Members of the other House. I expect Opposition parties to oppose. By definition, the Opposition's duty is to oppose the Government to make it more efficient and better.

The Government representatives are opposing each other.

The Opposition should make positive, definitive and categorical suggestions and proposals to that effect. When Opposition Members oppose, one expects them to propose something different and better, because there is no point in doing something different if it is not better, or one expects that, having done something worthwhile in the past which they now see being dismantled before their eyes, they feel duty bound to challenge the Government. However, this debate is radically different from anything I have experienced in recent times, and it is neither today nor yesterday that I first frequented the Houses of the Oireachtas.

It has emerged that the rainbow Government was approached prior to 1997 to address the historical issue of institutional childhood abuse and did absolutely nothing.

Or was it 30 years before that?

It is notable that the Ministers in the rainbow Government who were approached at that time have stayed well clear of this debate. Is this a case of "is binn béal ina thost"? By their silence shall we know them.

This Government is the first in the history of the State to listen to victims of abuse, apologise to them on behalf of the State and take positive action to redress the wrongs inflicted on them in the past. The Commission to Inquire into Child Abuse is just one element of the overall Government response to this complex problem. The Government strategy also comprises a nationwide counselling service and a redress scheme. Over the past couple of weeks I have seen Opposition Members selecting segments of information from the various initiatives, putting them into a bowl, liquidising them and producing a plethora of muddled messages. No new initiative is being proposed by the Opposition. Nothing is positive or constructive. All is negative and denigratory.

The Government will not provide the information.

The purpose seems to be to confuse everybody and ignore the consequences

The Government has succeeded in that.

The leader of the Labour Party commented that the resignation of Ms Justice Laffoy from the commission would cause more people to take their cases to the High Court rather than the redress board. That there is no connection between the work of the commission and the redress board seems to have escaped his notice, or did it? Perhaps it has not escaped his notice but he is doing his best to make political capital out of this sensitive issue. If that is the case, it displays an appalling lack of responsibility in a national party leader.

Other members of the same party commented that the redress board is not working well. I was not sure how to respond to this claim so I inquired for myself. I discovered that 97% of the awards made by the redress board have been accepted by the applicants without appeal. Surely that speaks for itself.

I have heard it said, inside and outside the Houses, that people who receive an award from the redress board are at risk of losing that award if they speak in public about their experience of being abused. This has been trumpeted time and again in the past couple of weeks. I checked this claim and found that the contrary is true. The redress scheme is based on medical evidence and involves no finding of abuse. Consequently, if recipients of payments from the redress board speak in public about the payment being proof of the fact that they were abused by a specific person, they could be sued for defamation by that person. It would be a travesty if someone were to be successfully sued in those circumstances. The advice given to abuse victims is cautionary and is given in their own interests. To characterise the position as being otherwise – and it has been so characterised on numerous occasions recently – or to use it as a basis to criticise the redress board is an abominable disgrace.

I welcome the appointment of Mr. Seán Ryan as chairperson designate of the Commission to Inquire into Child Abuse. I wish him well in his task and in the review of the investigation committee. I hope the result of that review will be an improved process. The need for a different type of investigative process does not reflect on Ms Justice Laffoy, who has shown enormous dedication and commitment to the task of chairing the commission over the past number of years. Notwithstanding that, the Houses of the Oireachtas must face up to their responsibilities as a Legislature. We must not shy away from the issue of the commission's investigation committee needing reform. We have a duty to face up to that issue. The investigation committee has not made anything like the progress of the confidential committee, which has heard more than 700 witnesses and is already two thirds of the way through its task.

When the commission was established in 2000, it was the Government's intention that it would carry out its work free of the adversarial environment and legal formality of the courts and that it would be able to deliver its final report within a couple of years. This was promised to the survivors and repeated by the Taoiseach in his newspaper interview last weekend. However, as time went on, it became increasingly obvious to the Government that this was not going to happen and that the commitment entered into was not attainable within the expected timeframe. Following the deadline for receipt of statements in July 2002, the commission indicated that the total number of applications to the investigation committee was approximately 1,957. It became apparent that, given the rate of progress of 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 between eight and 11 years. This timeframe was outlined by the commission and was based on the resources available to it. It would not be fair or reasonable that some of the people who had waited so long to have this commission established would not be dealt with for 11 years.

Concern about the progress of the commission was shared by survivors' support groups and they urged the Department of Education and Science to take action to ensure that the report of the commission would be delivered as soon as possible. They made the point that some of their members had already waited more than 40 years for validation. In addition to the long delay and its consequences for survivors of abuse, there was also serious concern that publication of the final report would be challenged by alleged abusers in the courts because due process had not been made available to them. This serious implication also had to be considered. The likely delays, doubts about the ability to publish a full report and the real probability that the State would be faced with legal costs of €200 million contributed to the necessity to review the investigation committee. The review has been trivialised by many members of the Opposition in both Houses and I assume we will hear more such remarks from the Members on the other side of this House today and tomorrow.

We must bear in mind the very important fact that the commission was created by the Oireachtas, following proposals by the Government. It is the Government's bounden duty to return to the Oireachtas when it believes that reform is necessary to achieve the objectives of legislation, not only in respect of the legislation under discussion but in respect of any other equally serious legislation. If this were not the case, we could throw Committee Stage out the window and reject calls by the Opposition for amendments regarding timescales and targets to be reached. The process makes no sense unless we are prepared to ensure that the Government and the relevant Ministers commit themselves to the timescales involved, as envisaged by the original legislation.

The Minister did not do that.

This is real reason why the review of the investigation committee is taking place.

The purpose of the review, as was said, is to find a way through which, rather than around which, the mandate given to the investigation committee can be achieved more efficiently and quickly and more cost effectively for the taxpayer. This latter point has to be factored in as well, bearing in mind that the other considerations are of paramount importance. The Government has to consider the Supreme Court judgment on meaning and the case being taken by the Christian Brothers in the High Court when framing amending legislation.

Originally, it had been intended that the redress scheme would follow the completion of the work of the commission. However, things do not always work out or fall into place as originally envisaged. This is not just limited to this area but also concerns many areas of Government activity, not just of this Government but of previous Governments, as I well know.

The Senator has a minute left.

Things are disintegrating.

It became clear that the lack of a redress scheme was seriously impeding the work of the commission and therefore the Government moved to establish one. The necessary legislation was enacted last year, as we know.

On CORI and the question of what the Government did, would have done or should have done, very few positive proposals are being made by the Opposition. It is suggesting that the Government gave in too easily, that it made a mess of the matter and that it is hammering the taxpayer. The fact is that it decided from the beginning that the primary responsibility rested with it because it had been the supervisory and inspectorate authority for all the institutions concerned down through the decades, as the Minister will confirm. For the first time in the history of the State the Government rightly acknowledged in public that the primary responsibility rested with the State and the Government as the voice of the State. Therefore, it said it would set up the redress scheme. Only later did the religious orders decide that a voluntary contribution would be made.

I am delighted that on "Questions and Answers" last night – I did not see it but it I heard a report pertaining thereto this morning on "Morning Ireland"– Fr. Seán Healy invited the religious orders to conduct an audit of all their assets, properties and wealth and to publish the results in the public arena. Maybe some of the outlandish, reckless and widely sweeping statements we have heard from some media commentators and Opposition politicians might be brought better into focus when this is done and maybe they will see the error of their ways. Maybe they are right, but I believe they have been jumping the gun. Some of those who aspire to statesmanship and to senior positions in Government – I stress the word "aspire"– should note that the words they are using, the emotions they are generating and the confusion they are causing in the public arena serve them poorly with regard to their future careers.

In 1998 the Government embarked on a process to bring healing and closure to the citizens who suffered abuse while in institutional care. In so doing, it took up a cause that the Rainbow Government simply did not want to and did not take up.

The Senator has played that tune to death.

The Government is delivering for the survivors of institutional abuse and it deserves the support of everyone in the House.

The manner in which this issue has reared up and become so difficult is unfortunate. When we passed legislation some years ago, I recall that there was unanimity in the House, as there should be when approaching this issue. It is unfortunate that this is no longer the case.

The Government may fire shots back across the floor at the Opposition, but I do not believe the Opposition can be blamed – I speak as an Independent – for raising issues which have upset people throughout the country. Whether the Government has acted honourably, correctly or legally and whether it took the advice of the Attorney General at the appropriate time are separate political issues that need be addressed. However, on the broad issue, people are upset by what is happening. I refer not only to victims of abuse, their relations and families but also to ordinary people who are asking how this matter arose. The Government has to take responsibility for it because that is what being in office is about. Therefore, it must accept the criticisms that go with that, whatever they may be. However, it is entitled to state what it regards as unfair criticisms.

There are various decisions to be made, some of a political nature and others of a different nature. I do not understand why the Government does not say to CORI that the process is costing a lot more than anybody expected and that it should be prepared to pay more if the religious institutions have more assets. Let CORI say it will not do so publicly if it wishes. This would be useful for the public to hear. We would like to hear the Government say it wants to discuss the agreement again.

It is grossly unfair to blame the Government for underestimating the costs. However much it underestimated them, I do not believe anybody could have estimated the actual costs at the time the agreement was made. Any reasonable person would say that. It could also be reasonably argued that, because we were unsure, the agreement should have been such that it would have allowed some revisiting of certain matters. This was not done and should be regarded as a mistake. I see nothing wrong with asking CORI to revisit the agreement and it should be done.

Senator Fitzgerald and others mentioned that there is no connection between the redress board and the commission. He and I know this, as do some other Members of the Oireachtas, but 99% of citizens do not. No attempt has been made to explain to them the distinction between both bodies and that they are working under two different legal heads. I have to blame somebody in Government for not making it clear.

The Government used the word "sampling", which generated much abhorrence, opposition etc. However, there must be a case for examining sampling as opposed to dealing with every single case. We should consider it before dismissing it. I do not know the answer to this problem but I could certainly put forward four different templates that might provide possible solutions.

Let us assume that, at investigation level, we dealt with the matter on the basis that the case of every alleged abuser be investigated and that conclusions be drawn from those cases without it being necessary to investigate every single act of abuse alleged to have been committed by each person concerned. A report could be published stating, depending on the appropriate words the commission is allowed to use, that such a matter has been investigated and that is has been concluded that the person in question is guilty of perpetrating the acts of which he is accused.

The commission could also find that the person concerned perpetrated those acts of which he is accused but that a number of other accusations made against the person were not investigated. That aspect, and the listening role where people outline their experiences and views which is also part of the commission's work, should progress in tandem.

From my experience of trade unionism and negotiations, I dislike situations where people have the option of pursuing two or three different courses of action. If people opt to use the redress board – they should be encouraged to do so – it should provide a forum which allows them a full and final settlement of their position vis-à-vis the State. This means that their accusations would not need to be addressed with the same urgency as those made by others. Some attempt should be made to bring together the redress and investigative aspects as it is not a good idea that they should be pursued separately. At some stage people will have to be compensated, but the separation of these aspects requires them to pursue two paths – the redress board for compensation and the commission for investigation. This leads to a duplication of work in that those involved in the redress board will sift through the same evidence as those in the commission, albeit not to the same forensic extent. While the commission will reach a conclusion about allegations, the redress board will decide on the compensation to be paid. This will lead to a duplication of work, which is not a good idea. There is a need to reconsider how both these aspects may be pursued together.

The Minister's contribution to this debate was appalling. I wanted to hear the Government's answer to the allegations made by Ms Justice Laffoy, yet from what the Minister said it would appear that the judge had simply reached retiring age and was being thanked for her work on the commission. Did the Government read her letter where she outlined the numerous reasons for her resignation? It is on the public record and the Government has made various attempts to respond, but the Minister should have outlined its position in the House today.

The Minister said the Government was prepared to allocate €1 billion to this area, yet it was not prepared to allocate to Ms Justice Laffoy the few million euro she requested to enable the commission undertake its remit. That makes no sense. Even in terms of the political process, I cannot understand how the Government can, on the one hand, say it is prepared to spend €1 billion on this issue, while, on the other, Ms Justice Laffoy indicated that the couple of million euro she sought to enable the commission recruit additional staff to do its work was not available. This is what has caused confusion among members of the public. A person made a decision that is not in line with Government policy or the Government is not telling us what is its policy. I want honest answers on this aspect.

I do not subscribe to the general view that Ministers are not allowed to make mistakes. We all make mistakes in our lives. All Members of the Seanad have called it wrong on many occasions. If the Government has made a mistake, it should say so. If necessary, it should acknowledge that it underestimated the amount involved. In the other House last week the Taoiseach rightly said that nobody could have expected the number of cases involved to be so high. The next step is to indicate that the figures originally estimated by the Government are lower than it could have expected them to be. That is a reasonable approach to take. It does not amount to a hanging offence.

However, there is a need to acknowledge that something must be done to address the matter. The first thing to do is to recall CORI for discussions and perhaps suggest it transfer to the Government a few more monasteries or round towers, or whatever it takes to meet the shortfall. There is nothing wrong with this approach. It is not a question of leaving people destitute or punishing those who do not need to be punished. There is a job to be done at a time when the victims feel they are being buffeted by the tidal energy of political parties and politicians, including myself. That approach is not working.

We need to take a new look at this area. I agree with Senator Fitzgerald and disagree with those who oppose a review. In most areas of life there is a need to constantly review things. There is nothing wrong with that. However, it was wrong for Ms Justice Laffoy to hear that the Government was to undertake another review when the Minister had not spoken to her for six weeks. That is crazy. If a chief executive was to run a company in that manner he would be told to undertake a course in human resource management or public relations. What happened to Ms Justice Laffoy in this instance was a case of absolute mismanagement. It was wrong and a mistake and, in fairness, nobody has tried to defend it. No matter how important the issues have become, personalities are involved. It is unacceptable if a person in charge of a high profile issue such as this hears of moves behind the scene to make changes, whether they be good or bad.

In this instance, such behaviour is all the more unacceptable because it has created an unnecessary chain of consequences. Ms Justice Laffoy had indicated that matters needed to be changed and this would have been the conclusion of any person looking at the matter. She concluded that there was a lack of resources, but it must be suspected that the Minister did not speak to her because he did not want to provide them. On that basis it is hard to understand why, on the one hand, the Government has indicated it is prepared to make all this money available for compensation while, on the other, it will not make money available for resources. These questions need to be answered. It is not about who was right or wrong.

I do not understand the questions surrounding the role of the Attorney General. I understand the Attorney General would only have been involved in the legalities of the agreement. Nobody has indicated to me that legal advice would have resulted in a different course of negotiation. The Attorney General was hardly likely to be called upon to give advice on the amounts involved or on the negotiation process. It has been suggested that the Minister and Secretary General should have been accompanied by a legal adviser in the negotiations. It is not that long ago that Deputy Noonan was hammered because he followed legal advice in the terrible case in County Donegal. I have often had to take decisions against legal advice and there is no harm in conducting negotiations in the absence of legal advisers. Most of the time they block negotiations because they will not allow people to speak freely. I do not have a principled objection to the fact that in this instance negotiations took place in the absence of the Attorney General's representatives because they always advise silence in view of the danger of incrimination and so on. Negotiation is concerned with the parties saying more than needs to be said.

The issues of concern here can be addressed. It is possible to move forward. The Government should outline what was its stance at the start of this process, where it hoped the process would lead, what it considers to be the current position and its proposals for taking a different approach to dealing with it. It is not simply a question of a review; there is a structural problem.

I welcome the establishment of the redress board, but my views on its role have changed. There is a duplication of work arising from the separate roles of the board and the commission. I understand why they were constituted separately and that to combine them would require new legislation. That might save much time. We could then deal with sampling in the context of the other two issues. It would save time and ensure people receive justice, a hearing, vindication and compensation. That is the way we should proceed.

I wish to share my time with Senator Maurice Hayes.

Acting Chairman

Is that agreed? Agreed.

The issue of child abuse in institutions represents a dark period in the history of the State. The victims and survivors of this terrible period must not be forgotten. In the controversy that erupted last week, there was a real danger that the victims and our obligations to them would be forgotten. Rather than engage in useless political finger pointing, we should remember that the State failed in its obligation to these victims and, as citizens of the State, we all have an obligation to provide redress.

In many cases the State removed children from abusive situations in the home only to entrust them to abusive situations in religious institutions. In other cases, children were placed in repressive regimes in State-run institutions. The State failed many children. This is a chapter in recent history of which we should be deeply ashamed. The only remedy is for the State to act honourably and fulfil its obligations to the survivors of abuse. We cannot let them down a second time.

Last week, numbers were bandied about and assertions made that the redress scheme and indemnity deal with the religious orders could cost taxpayers up to €1 billion. While it is important to make good estimates of potential costs, another more important figure has gone almost unmentioned. According to the Comptroller and Auditor General's report, approximately 29,500 people born since 1930 were committed by the courts to industrial and reformatory schools. It has become clear that a high proportion of these children and young people were physically, sexually and psychologically abused in the most shameful manner in these institutions. This figure of 29,500 is the most important, not €1 billion, €700 million or €128 million. The figure constitutes 29,500 people, each with a story to tell, who were let down by society and the State. They should not be forgotten. In discussing costs, let us not forget the pain and suffering that lies behind each of their stories.

Information about child abuse in institutions first emerged in the 1970s, but unfortunately, like so many other issues in society, it was brushed under the carpet. The victims became more vocal in the 1980s, but successive Governments chose to ignore them. In 1999, the Government took a brave and honourable step by deciding it was time to bring the shameful past out into the open and begin the healing process.

The Taoiseach issued a sincere and long overdue apology on behalf of the people to the victims of institutional abuse. He spoke for us all, including Oireachtas Members and political parties. It was a true act of leadership. The Government was the first in the history of the State to listen to the victims of abuse, to apologise to them on behalf of the people and to take positive action to redress the wrongs inflicted on them. For that, the Taoiseach was applauded on both sides of the Houses and throughout the country. It was right that this happened.

However, the apology came with a price and the time has now come to put our hands in our pockets. I find it ironic that the members of political parties who joined in that apology have climbed into their cupboards on the issue of the cost of compensation. When the Taoiseach issued the apology on 11 May 1999, the Government was faced with a stark choice. It could no more have chosen to do nothing than it could have chosen to leave the victims to fight tough battles in court, even after the State had apologised. That would have turned the apology into an empty and shameful gesture.

Another option could have been for the Government to try to place all responsibility for payment on the religious orders, effectively bankrupting them. Some believe this would represent a just reward for the religious and there were loud calls for the religious to pay more, thus bleeding them dry. Such people forget the simple fact that the State was complicit in the abuse and largely responsible for not preventing it. The State entrusted vulnerable children into the care of religious orders and closed its eyes to what was happening. In many cases, the State knew of the abuse and neglected to do anything. It failed in its duty. The State was guilty.

In making the apology, the Government owned up to this fact, and in so doing, the State assumed a legal liability. The truth is that the State made the first move. It got the religious orders on board. If it had dragged its feet or delayed, it would have been widely criticised. Moral pressure was the only weapon the State had at its disposal when negotiating with the 18 religious orders. They did not have to make nor could they be made to make a contribution. That irrefutable point strengthened their hand.

The State, in issuing its apology, made a commitment to the victims to compensate them. It should be made clear that, before any agreement was reached with the religious orders on their contribution to the scheme, the Government had already decided that a redress scheme should be established regardless of any contribution. It was better for the State that the congregations made a contribution to the scheme than not have them make any.

Critics of the deal claim that costs of redress should have been split evenly between the Church and State. That probably sounds like a reasonable suggestion to most, but it ignores the fact that one cannot say what proportion of liability should fall on the State and on the religious congregations. The only way strict legal liability could have been determined was by putting every case through a full court procedure. Was it a real or preferable option to drag every case into the courts with all the attendant delays and with the possibility that some cases might fail? I think not.

At all times, concern for the victims had priority in the Government's considerations. In addition to concern for the victims, it was pointed out that, from a legal perspective, because much of the congregations' property is tied up in trusts, it could not have been taken, even by the courts. As the Tánaiste said last week, everything was guided by the desire to do right by the victims. There was concern in many quarters about the potential financial exposure to the State, and the Attorney General demonstrated his diligence in this regard as well. Ultimately, the overriding concern was to provide effective and speedy redress to the victims. In such circumstances, it is ironic that other parties are so critical when in power they stood by and did nothing.

I am grateful to Senator Kate Walsh for sharing time with me. I would also like to draw attention to the priority we should give to the victims in this. Our minds should be directed towards them.

I do not like recrimination in these matters but it is clear that the tribunal of inquiry is not necessarily the best instrument for dealing with these matters and it is perhaps a salutary lesson to us all. There is a tendency when something arises or there is some rush of emotion to establish a public inquiry. The political landscape is dotted with inquiries which repeatedly create difficulties.

It may not be possible in the Irish situation with our Constitution to prevent an inquiry becoming legalistic. If people's reputations are impugned, they have a right to defend themselves and assert their positions. I do not think it is possible in the Irish situation to have a Hutton-type of quick and easy inquiry. It all points towards the importance of following up the suggestions and proposals of the Minister for Justice, Equality and Law Reform for another way of dealing with these subjects.

I would like to pay tribute to Ms Justice Laffoy. It is a tragedy that the experience and knowledge she has gained in the past four years will not, perhaps, be available. I hope some way will be found to keep it on tap.

The Act establishing the inquiry contained a clause requiring staffing and other matters to be approved by the Department of Finance. I have been involved in setting up inquiries where I was virtually held to ransom on the question of legal costs. It is important, therefore, that structures, business methods and so forth be examined.

Senator O'Toole asked the reason, when one is prepared to spend €1 billion on the inquiry, one cavils over the candle ends of administrative expenses. The difference is that the €1 billion to which he refers, if this emerges as the final sum, would go towards redressing the hurt of victims, rather than legal costs which are a different type of charitable object.

I congratulate the Taoiseach and the previous Government for taking the important step of assuming liability. They could have told victims to sue, which would have taken forever and involved putting them through the wringer. It is easy to make too much of the voluntary nature of the contribution of the religious orders. The reason it became voluntary was solely because the State removed liability and the religious orders should recognise this. While there may be legal inviolability, the religious orders still have a moral responsibility.

I wish the religious orders would put away their law books and take up the New Testament for a while. I am not engaging in bashing the religious orders, having been educated by one, to which I owe an enormous amount. I also worked for a religious order and know hundreds of their members who have done outstanding work in caring for children and others. The fact remains, however, that some members of religious orders committed abuse, which I will not quantify, and a culture of denial and refusal to accept this fact obtained in the church.

I appeal to the religious orders to reconsider their approach. They will have noted that the public outcry on this issue is largely related to the disparate nature of the contributions being made. I was heartened to read the remarks of Archbishop designate Martin the other day in which he stated he wanted a less adversarial approach to be taken in regard to victims. While the legal standing of the arrangement is one thing, its moral standing is another. I want the religious orders to re-examine the issue.

To say this matter is exclusively the responsibility of the State because it did not properly police the system is like blaming the Garda for burglary. While there was fallibility on behalf of the State and a lack of supervision, the acts of abuse were, nevertheless, the responsibility of the religious orders and they should face up to this. It would be a pity if changes to the process resulted in victims not being able to tell their stories or express themselves, which was the reason the commission was established. It is for this reason that a system of sampling would not work.

We should be prepared to take a radical look at the commission to ensure it is brought to a speedy conclusion. I am sure the original intention of the Government and the Oireachtas in establishing the current arrangement was, as the Minister stated this morning, to have a fairly informal and speedy process. The sooner we achieve this, the better.

Senator Fitzgerald levelled accusations at the Labour Party to which I wish to respond. The motivation of the Labour Party is to ensure the victims of abuse carried out in religious institutions are compensated and their concerns addressed. The issue is not one of money but timely and appropriate recompense by those responsible for abuse. As an Opposition party, we also have a duty to hold the Government to account for its actions on this issue, as do backbench Members of the Government parties. The issues we have raised have been backed up by the Comptroller and Auditor General's report presented last week to the Committee of Public Accounts, Ms Justice Laffoy's correspondence with the Department, and Government Ministers, especially the former Attorney General and current Minister for Justice, Equality and Law Reform, Deputy McDowell. We have raised valid concerns about the way in which the deal on indemnity was handled by the Government.

Senator Maurice Hayes welcomed the Government's decision to assume liability. The difficulty relates to the terms of the deal because the Government assumed liability on behalf of the taxpayer. We also raised concerns about the manner in which the Laffoy commission has been obstructed in its work. As these are a matter of public record, I do not propose to address them in detail. We have, however, been raising the issue of the reckless indemnity deal since the details first emerged more than a year ago.

The contributions of Senator Fitzgerald and the Minister have shown again that the Government has still not accepted responsibility for its actions, which does not augur well as regards where we go from here. The Government response remains contradictory and demonstrates, through its counter accusations and avoidance of responsibility, the confusion of which Senator Fitzgerald accused the Opposition.

The Minister mentioned the Taoiseach's apology which appeared to be genuine and is to be commended. It has not, however, been backed up by the Government's response in the intervening four years. My colleague, the leader of the Labour Party, Deputy Rabbitte, noted the contradiction in its approach by, on the one hand, assuming open-ended responsibility in terms of the indemnity for the abuse by those in religious institutions while, on the other, obstructing to the point of collapse the work of the commission it established to inquire into child abuse.

The former Minister for Education and Science, Deputy Woods, stated his Department foresaw delays in the work of the commission while omitting to mention that the Government failed to respond to Ms Justice Laffoy's continued requests for additional resources and her recommendation that parallel hearings be held. He expressed concerns regarding legal costs of some €200 million, yet signed off on an open-ended deal which could leave the State facing liability of up to €1 billion. This is the conclusion of an officer of the State, the Comptroller and Auditor General, rather than an implication made by the Opposition, as the Minister indicated to the House.

The Minister asked what else the Government could have done regarding the deal. At a minimum, it could have used its legal services, that is, the Attorney General's office, in concluding its negotiations. Referring to the contribution of €128 million, the Minister stated:

However, it must be remembered that any contribution by the congregations is of a completely voluntary nature. The Government could not impose a contribution on them.

It is as if the Government had no role in this affair. There is little hope that it will meet its responsibility and resign over its handling of the matter. I do not believe the Progressive Democrats will do the job to which they appointed themselves in the eyes of the electorate in the last election, that of watchdog in the Government. I call on the Minister and the Government to take responsibility and do what should be done.

I hope the religious orders review their role and what they have agreed. I call on the Government to supply the recommended resources to the commission on child abuse and to act on the recommendations of Ms Justice Laffoy with regard to parallel hearings and so forth. Above all, the Government must accept responsibility for its actions and do whatever is necessary to address the mistakes it has made.

I join in the tributes to Ms Justice Laffoy on her work and wish the new chairman of the commission, Seán Ryan, well in his work.

I thank Senator Tuffy for sharing her time. She spoke about the Government and the commission reviewing their roles. It is time everybody looked at the current situation and this debate is useful in that regard.

Clearly, things have gone wrong with the structure that was set up and the way it has proceeded. That is not to say the structure is at fault but the input into it and the role of other parties, particularly the religious orders and the Government, are not working. It is time for the orders and the Government to stand back and look at what we are trying to achieve. Unless that happens, we will continue to be mired in this intractable process and we will not achieve the ambition we had when setting up the commission, that the victims of institutional abuse would not only get redress for that abuse but also that there would be closure for them and for us, as a society, on this serious issue. It is extremely important that this should happen.

How will this happen? I call on the religious orders to examine the role they are playing in this process. It is not impressive, given what we know. Fr. Seán Healy said today that the orders should make public the information on their assets. However, journalist Mary Raftery, who has been a shining light of information and clarity on this issue, said on the radio at lunch time today that the experience in other countries was that it was difficult to obtain full information on the assets of religious orders. Some assets could be hidden, liquidations have occurred and, in some cases, property was tied up in trusts and so forth. This matter is not as simple as it looks. What is required is a level of honesty, openness and responsibility that has been absent to date. Instead, we are getting a defiant attitude of releasing as little information as possible. It is a lawyer-driven approach rather than the church-driven approach we would have expected from the religious orders.

The role of the Government is to provide leadership. The Government is a player as well, given that the Department of Education and Science had a role in this issue in the past. That must be separated from the role of the current Government and the need for it to provide leadership and ensure matters proceed correctly. That is not an easy road to travel. It will require careful management of the issue and a considerable level of leadership, which has not been seen so far. There has been an apology from the Taoiseach but, as Senator Tuffy pointed out, that apology is empty because it was not followed up with clear action. The Taoiseach promised but he did not deliver. That, again, is a repetition of the experience many victims have had. Our society has promised them that it will live up to its responsibilities in terms of what happened to them in the past, and we are failing to do that. Until we succeed in doing that and face up to our responsibilities in this area, we cannot close this chapter and move on.

Today, in the short time I had to listen to the radio, I heard a story about the last woman to work in a Magdalene laundry in Dublin. She was buried in Glasnevin cemetery in August after her death at the age of 51 years. She was buried under the name Mary but that was not her name. When a woman who knew her got in touch with Glasnevin cemetery to find out where she was buried in order that she could visit the grave, she discovered the woman had been buried under the name Mary. Have we learned nothing? We have known about the scandal of the Magdalene laundries for a number of years but we still seem to be caught in the same cycle of actions. These actions were offensive in the past and are offensive in the present. There is no reason that they should be offensive in the future if we learn lessons from the past and behave in a new way.

This is a welcome opportunity to discuss an issue that has been to the forefront of people's minds in recent weeks. It is important to remember the comments of the Minister for Social and Family Affairs not only on the Government apology to victims of abuse on behalf of the State but also the need to take positive action to redress the wrongs inflicted in the past. Like other speakers, I regret the decision of Ms Justice Laffoy to resign her position as chairman of the commission. She did important work and I hope her successor, Mr. Seán Ryan, will be successful as chairman.

Some years ago the education committee discussed this legislation. The Acting Chairman, Senator Ulick Burke, was a member of that committee and I was its chairman. We had many requests for submissions from people who had been abused, including from Survivors of Child Abuse and Right of Place. Senator Ó Murchú, Senator Ormonde and Senator O'Toole were also members of that committee. We acceded to those requests and held many long debates on this serious issue.

There were a number of representations from survivors of abuse living overseas, including a committee in London for female survivors of child abuse. Their situation was particularly bad. They spoke about their disadvantages and the fact that some of them had lived in destitution over the years because they were unable to get employment. They felt the need to come to our committee and to the commission to tell their story. One of the main points they made was that they hoped action would be taken quickly. The Right of Place committee was particularly keen to have the decision delivered as quickly as possible. They made the point that they were elderly and did not want the existing situation to continue indefinitely.

There was good reason for carrying out the review after the commission was established. The Minister for Education and Science set out his reasons for the review. We all hoped that action would be taken to ensure the report of the commission would be delivered as soon as possible. We did not want a situation to arise where a report would be challenged in the courts, leading to an adversarial situation in the courts which would delay a result for people who deserved to have final closure on this issue.

There has been much discussion on the question of the contribution by the religious congregations. A figure of €128 million was mentioned as a voluntary contribution by them. Subsequently, we heard from the Comptroller and Auditor General that the State ultimately could pay in the region of €1 billion.

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