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Seanad Éireann debate -
Thursday, 23 Jun 2005

Vol. 180 No. 25

Commission to Inquire into Child Abuse (Amendment) Bill 2005: Committee and Remaining Stages.

Sections 1 and 2 agreed to.

I move amendment No. 1:

In page 6, before section 3, to insert the following new section:

"3.—References in the Principal Act to the Minister for Education and Science shall be construed as references to the Taoiseach.".

I welcome the Minister to the House. On Second Stage yesterday, I acknowledged the fact that she had a very difficult task in taking over at a time when great difficulties were identified in respect of the commission and its workings. This was particularly the case following the resignation of Ms Justice Laffoy and the problems that created. They were not imaginary difficulties and the frustration clearly identified in her letter of resignation highlighted for many that the whole area of responsibility should be taken away from the Department of Education and Science. It was highlighted by way of saying that the Department of Education and Science was investigating itself through the commission. In other words, the commission was investigating the Department and it would be far more appropriate if the investigation was under the auspices of the Department of the Taoiseach.

Initially, it was the Taoiseach who offered the apology. He has given his opinion on the whole matter on various occasions and has indicated his support for the commission. It is necessary to break the link between the Department of Education and Science and the commission because of the track record and the difficulties shown up.

When people say that the Department of Education and Science stymied progress and did not co-operate with the commission, these are very serious charges. No doubt they had weight and truth in them. For that reason it is important that this concern, which is shared among the various parties, is addressed and that there should be a change from the Department of Education and Science to the Department of the Taoiseach. The complainants who have come before the commission have serious concerns about the way the Department of Education and Science handled their individual cases. There are questions to be asked about what the Department knew, in certain cases, in the past. There are also issues concerning incorrect information being given in the Dáil in response to parliamentary questions as far back as the 1980s. Questions arise as to what the Department knew, how it reacted and what information was given. Somebody knew.

Many personnel in the Department of Education and Science today had nothing to do with what had happened in the past. The charge I am making has nothing to do with the current complement of professional people in that Department. I fully support whatever action they are taking now so that this situation never happens again. That is probably why we are here today, to put in place a framework that will ensure nothing like this will ever happen again and that Departments and Ministers will never have to deal with similar occurrences. It is imperative, therefore, that responsibility be transferred from the Department of Education and Science to the Department of the Taoiseach. This should be a fundamental part of the legislation. It would change it, without any aspersions being cast on the current Minister or her actions and what she intends to do.

I have no doubt that progress has been made in recent times and that is welcome. Many complainants have been satisfied, to a degree, in the fairly recent past under the current workings of the commission. Nevertheless, in the interests of the many people who have expressed concern about the Department's inability in the past, allied to the breakdown in trust that exists, this matter must be seen to be rectified.

I want to say to the Minister that while I had some sympathy in the early stages with the sentiments expressed by Senator Ulick Burke — although I would not have supported his amendments for the reasons I will give — I have little sympathy, if any, for the point he makes at this stage. I said yesterday that justice delayed is justice denied. To go down the road the Senator proposes would cause further significant and perhaps enormous delay. That is the last thing the victims of abuse want at this stage. God knows they have waited 30, 40, 50 years and sometimes a lifetime for justice. Now it is within their grasp and it is our duty to give it to them.

There was a case, at the outset, in that some difficulty existed within the Department of Education and Science. There were delays and that is accepted. The then Minister put his hands in the air when he became fully aware of the delays and acknowledged that they were serious and not acceptable. However, we have moved a long way from there and there is now considerable and very satisfactory engagement with the Department of Education and Science. No victim support group has brought this to my attention in recent times as an issue. If they had I would acknowledge it today. I cannot support this amendment, because it is not a live issue and also because enormous delays are inherent in the proposal.

I support the amendment. I will not repeat what Senator Ulick Burke has said, but I support the points he has made. The purpose of tabling the amendment is that apart from the fact it was recommended by Ms Justice Laffoy, it should be a matter of principle and fair procedure that a body does not investigate or sponsor a Bill to investigate itself. That is the case here where the Minister for Education and Science is the Minister referred to in the legislation. For those basic reasons, which are fundamental to how anything that involves legal import is carried out, the body being investigated should not be the one to carry out the inquiry. That is the basis of our support for the amendment. I suggest it is also the reason why Ms Justice Laffoy recommended that this change should be made.

I do not see why it should cause any delay. It is up to us how we deal with matters and whether there are delays in making changes. It is a fundamental recommendation made by Ms Justice Laffoy and it is fundamental to how the Act is implemented.

No one has any criticism of the Minister or her Department. I am quite sure that Senator Ulick Burke does not intend any either in putting forward this amendment. However, we all know by now the little we can do to actually heal the hurt experienced by the victims of child abuse. We are all trying to do the best we can. If it would help them at all to have the references made to the Department of the Taoiseach rather than the Department of Education and Science, I suggest we proceed on that basis. It would not cause delay, as Senator Fitzgerald has argued. That is the last thing we want.

The Taoiseach did a magnificent job in the apology he gave on behalf of the State in 1999. I only wish more fulsome apologies had been proffered since from some of the other parties who were involved in this. I know that the orders have made apologies, but in some cases it was dragged out of them. If there is anything we can do that stops this focus on the Department of Education, as it was then known, it should be done. Complaints were ignored and even comprehensive inspectors' reports were shelved simply because it was considered unsuitable to bring such matters forward. I urge the Minister to accept the amendment.

The important issue for the survivors is, as everybody says, to have an efficient process and to be able to help them, as far as possible, in this way. There is currently no demand from the victim support groups to move from the Department of Education and Science to the Department of the Taoiseach. It is typical of other tribunals that the relevant Department is the sponsoring Department. To date, the Department has invested considerable manpower and resources in ensuring all the needs of the commission are met. The Department and the commission have a strong, positive relationship and any information sought by the latter has been provided.

The Department takes on board the comments and criticisms of Ms Justice Laffoy. It is interesting to note, however, that the third interim report of the commission included a comment which reflected favourably on the Department. It noted that some of the requests submitted had lacked clarity and that the Department was given insufficient time to deal with some of them. Nevertheless, the Department accepts that relations were not as good as they should have been. This has been rectified and all concerned are now happy with the current working relationship.

Acceptance of the amendment would cause delay because it would require a whole new set of officials to start again from scratch. The system is working well and dedicated staff in the Department are working well with the commission and groups. I do not propose to accept the amendment because it is not necessary and would not assist the survivors in the process.

It is not fair to draw parallels between the commission and other inquiries and commissions because all the others are dealing with external matters. The difference in this case is that the Department is investigating itself, whereas the cases with which the Minister drew parallels do not involve internal investigations.

The Minister has repeatedly stated that marvellous progress has been made and I welcome that fact. Does she envisage establishing a mechanism by which progress could be verified on an ongoing basis, for instance, in terms of the number of cases the commission has concluded? On Second Stage yesterday, I expressed frustration that when the Fine Gael Party tried to elicit information from the commission on the number of outstanding cases, it refused to provide it because communications were still being received. I accept, however, this is a legitimate reason for withholding information. Will the Minister establish a mechanism to report on the progress she has outlined?

I can provide the Deputy with a statement of the amount of resources, documentation and so forth the Department has provided. For example, approximately 1,700 responding statements have been made in respect of 1,380 complaints. The Department has complied with earlier discovery directions issued by Ms Justice Laffoy when she was chairperson. It had also complied with a further 23 discovery directions by 30 September this year. The total estimated cost incurred by the Department as a respondent was €1.89 million, which consists primarily of staff costs but also includes IT software costs, etc.

By September 2005 the Department was working on four discovery directions of a general nature and ten institution-specific directions. In total, it has provided 150,000 pages of documentation. This information shows that, notwithstanding the difficulties encountered in the past, the Department is providing all information sought in an efficient and much more organised manner.

Amendment, by leave, withdrawn.
Section 3 agreed to.

I move amendment No. 2:

In page 7, line 9, after "period" to insert the following:

"including in particular the adequacy or otherwise of the manner in which responsibilities were discharged by persons in authority, including judges".

The amendment provides that the matters to be investigated by the commission should include, in particular, the adequacy or otherwise of the manner in which responsibilities were discharged by persons in authority, including judges. Children were placed in institutions by courts but whereas the role of other bodies is being examined, the role of courts and judges has been excluded from the investigation. This will create a gap in terms of the outcome of the process.

It has been argued that the amendment would somehow constitute interference by the Legislature in the workings of the Judiciary. This is not my intention. The purpose of the amendment is to ensure that the history of the matters under investigation is examined in full. The role of the courts and judges in making decisions to place children in institutions will be an important element of this process.

Although I do not claim to know a great deal about the issue, I suspect that some children were placed in institutions for no good reason and that the decisions made at the time may have been totally inappropriate. For this reason, an examination of the role of the courts and judges in the events of the period should be part of the process of finding out the truth and getting to the bottom of what happened.

The sole purpose of the amendment is to build up a correct picture of what happened and ensure all aspects of the background to the events under investigation are examined. It is intended not to interfere with the Judiciary, the courts system or the role of judges in society but to examine the historical role of the courts in the matters into which the commission is inquiring.

I am glad the Minister is present because I recall the great care she and all Members took when the House passed the Children Act, to ensure children were not slapped in and out of institutions. The insertion of subparagraph (i a) goes a long way towards improving the original Bill.

Senator Tuffy made a good point; people want to try to discover why they were placed in institutions and what went wrong. As she stated, children were placed in institutions for very little reason on occasion. Recalling the Minister's commitment during the passing of the Children Act, I suggest the amendment is worthy of acceptance.

I do not see much difference between subparagraph (i a) and the wording of the proposed amendment and have few quibbles with Senator Tuffy’s comments, as supported and amplified by Senator Henry. All of us, including the Minister, approach this issue from the same perspective. My only reservation relates to the issue of crossing the line in terms of judicial independence, to which Senator Tuffy referred. The reference to “judges” in the amendment may create a difficulty. In elaborating on this issue, the Senator noted that the purpose of the amendment was to ensure the role of the Judiciary as opposed to individual judges is examined in an historical context. Nevertheless, I respectfully suggest, notwithstanding our anger and disgust, that particular sensitivity may be required to ensure the line is not crossed in terms of judicial independence and the role of the Judiciary at the time.

Senator Tuffy referred to the need to investigate the circumstances which gave rise to each individual case, an important requirement. The wording of subparagraph (i a) makes a significant contribution to addressing this issue in an historical and individual context, without referring to the decisions of individual judges.

I support this highly relevant amendment. Last night on "Tonight with Vincent Browne" there was a very good example of what we are discussing. A woman on the programme told how she was put into an institution as a child. She did not know why she was put into the institution at seven years of age or why she was then transferred from one institution to another. She had no idea of the reasons. She was abused in all of the institutions in which she was placed. Her horrific experience makes these amendments relevant.

One of the main aims of the commission is to find out exactly why children were placed in these institutions. Many were put in for very spurious reasons and ended up with criminal records as adults for something they may or may not have done as children. That is why we have included subparagraph (i a) in section 4(1)(a)(i), which states, “to inquire into the manner in which children were placed in, and the circumstances in which they continued to be resident in, institutions during the relevant period,”. We are satisfied, as is Mr. Justice Ryan, that this allows him to look at the operation of the courts and the Judiciary in a general sense to see how this came about.

The amendment, however, specifically mentions judges, thus crossing into their constitutional independence as individual judges, which is not the intention. We cannot look into individual cases to ask why a particular judge placed someone in an institution. We need to know the general circumstances of the time and how the courts worked in a way that allowed this to happen — that will be the focus of the commission of inquiry — rather than looking at the individual. We are satisfied that what we want is provided for in section 4(1)(a).

I respect what Mr. Justice Ryan has said but I am unhappy with the wording of section 4(1)(a). If it is implicit that decisions by judges which caused children to be sent to institutions can be looked at in the general sense, I do not see why it cannot be expressed explicitly in the legislation. The wording of the amendment will not lead to an examination of the role of the courts.

Inquiring into the manner in which children were placed in institutions avoids what we want to achieve, it is too vague. If we are to look at the generality, we must also look at specifics and examine the role played by judges at the time. If we cannot do that, it will place a major obstacle in the way of our work as legislators.

We are not interfering with the independence of judges. The courts implement the law that we make but we must look at its implementation to see if it must be reformed at a future date. This amendment would not interfere with the independence of the Judiciary and would improve the Bill. The amendment would clarify the situation.

The Minister is not disposed to accepting the amendment but section 4(1)(a) allows for inquiry into “the role of the courts in the manner in which children were placed in, and the circumstances in which they continued to be resident in, institutions during the relevant period”. Would that allow the role of the courts to be investigated?

Section 4(1)(a) allows the commission to inquire into the manner in which children were placed in institutions. The vast majority of children were placed in institutions by the courts. The section allows the commission to inquire into the system — the courts and the Judiciary — but not to look at individual judges. I appreciate fully what the Senators are trying to achieve but we are satisfied that we can achieve it without compromising the independence or constitutional position of the Judiciary as a separate entity.

Amendment, by leave, withdrawn.

Amendments Nos. 3, 4, 6 and 8 are related and will be taken together by agreement.

I move amendment No. 3:

In page 7, between lines 12 and 13, to insert the following:

"(iii) where cases do not proceed to full inquiry this shall be on the basis of clear and objective criteria, decided in consultation with representative groups,".

These amendments seek to secure clear information for the public. The Commission to Inquire into Child Abuse must give victims the greatest possible opportunity to have their cases heard and the public must be informed regarding the operation of the commission. Amendment No. 3 attempts to achieve that objective.

The Act is being amended to remove the obligation on the investigating committee to hear all complaints and it gives discretion as to which witnesses it considers should be called to a full hearing. If there is discretion over why they should be called to a hearing, we want to know the criteria used. Where cases do not proceed to a full hearing, it should be on the basis of a clear and objective criteria decided in consultation with the representative groups. This is the rationale behind the amendment. The criteria on which the decisions may be based is not outlined in the legislation and it is important that it is made clear.

Amendment No. 4 would allow the criteria for deciding which cases may not proceed to full inquiry to be published and made available to the public. This seeks to throw more light on the proceedings of the Commission to Inquire into Child Abuse. In seeking to ensure that the criteria for deciding which cases proceed to the full inquiry are published, and thereby made available to the public, either in print or electronically, this amendment seeks to ensure that the victims and the wider public are informed as to how decisions are being made by the commission. Currently it is unclear how these decisions are reached.

In the other House, the Minister indicated why Mr. Justice Ryan deliberately avoided imposing selection criteria in the cases that would receive a full hearing before the investigation committee. He felt it was not possible to develop specific criteria. This was made on the basis that no two situations are the same. Conversely, is the same not true? I ask the Minister to accept this amendment.

Amendment No. 6 proposes that the criteria for deciding which meetings shall be held in public, shall be agreed with representative groups and made available to the public. This amendment, as with the earlier ones, is submitted in the interests of victims of past abuse and the general public who should have information on the operation of the Commission to Inquire into Child Abuse.

Amendment No. 8 seeks a clear definition of what is meant by the term "reasonably practicable" as was agreed in the consultations with the representative groups and that it shall be published and made available to the public. The Oireachtas has been asked to prepare legislation which includes the term "reasonably practicable" without any proper definition. It is evident that what is reasonably practicable to one may not be to another. The definition of what is meant by this term must be included.

I am sure the Minister wants the workings of all committees involved to be as transparent as possible. However, there are justified complaints that people do not know how cases will be chosen to come before the committees. I am still not sure if people who wish to go before the committees will be definitely allowed to do so. On Second Stage yesterday, the Minister stated: "It will reduce the likelihood of people who are less able for adversaries hearings being subjected to examination and cross-examination before gatherings of lawyers and other interested parties". The Minister is correct because we have heard dreadful stories of how some people felt either before, during or after attending these committees. I was delighted that yesterday the Minister mentioned counselling is available for people before and after going before the committees. I found many people did not know this was available. It may explain why few offers of counselling have been taken up.

It is important for those coming before the committees to know the criteria under which they have been brought forward. It is important the general public also knows these criteria. Otherwise, we will only end up in a situation, which I believe the Minister does not want, where the committees' workings are accused of not being transparent. I accept they cannot all be totally open to the public as many committees will deal with subjects requiring them to sit in private. However, the public must know as much as possible about what is happening with these cases.

I am sympathetic to most of what has been said. However, these concerns were elaborated on by the Minister yesterday on Second Stage. She made it clear that the individual applicant's case that will be called will be the one deemed by the committee to be the most representative of what happened at a particular institution. I am happy from what she said yesterday and from her contributions on the Bill in the Lower House that she is all for transparency. I am glad that has been acknowledged by Members.

One can raise too many technical arguments as to what the criteria should be. One could engage with representative survivors' groups as to the widest possible set of criteria. However, given the strong arguments made for the changes the Minister has proposed in the Bill, I believe the criteria she articulated are as good as any. After all the applicants from that institution have been reviewed, if an individual's case is as fair and as widely representative of what happened in a particular institution as one can determine, I believe it will be adequate to meet the requirements and concerns set out.

The confidential committee has already heard 1,060 witnesses. It has heard everyone who seeks to give his or her story. Everyone who wishes to go before the investigation committee is interviewed and a decision is then taken as to whether he or she goes to a full hearing. The way in which that decision will be taken will be to ensure the commission can get as full a picture as possible of all the complaints, circumstances and timescale being examined. As we are looking at a 30 year timescale, it is important for the commission to get a flavour of each of those three decades, rather than taking all from one and none from another. This is why Mr. Justice Ryan deliberately avoided imposing selection criteria for cases because it may be different for each individual institution, times or the circumstances being examined.

In the majority of cases, all complainants will get a full hearing. There are five homes where the number of complainants is too large to enable the commission to hear them all to collate the information for a report. These are the boys' industrial schools, Fairyhouse, Upton, Letterfrack and Artane and Dangan, a boys' reformatory school. Every witness in every school the commission investigates will be heard, except those five. The majority of people will go to full hearing. The idea is that the investigation committee's legal team will be able to give a full picture of life in those institutions over the 30 years. By first interviewing the people affected, the team will be able to determine if there is duplication of evidence or if a new story is emerging that may be valuable to be heard. It is important the team has the flexibility to do this. If the team finds, even after inviting people to a full hearing, that it still does not have as broad a picture as needed, then more people can be invited to the committee. It is not too strict a system but allows the flexibility for the team to work. Fixed criteria are not wanted as there may be differences between individual institutions.

Amendment No. 6 proposes the holding in public of meetings and joint hearings which can be attended by survivors, their representatives, respondents and their representatives. In both cases the investigation committee will be entitled to work in this way whenever it considers it appropriate. Again, tying it down to agreed criteria would limit the committee's discretion. The committee is the only one to decide whether to have a hearing in public, based on the information it has on the content and purpose of the hearing. Like a tribunal of inquiry, it will hear evidence on oath from witnesses who have relevant testimony to give and collect documentary material which it can analyse. Only then, will it be able to assess the material and come to conclusions. This can only be done according as the hearing process progresses. It will be different for individual institutions.

Regarding amendment No. 8, section 7 is intended to allow the investigation committee to call before it people whose accounts it considers will provide it with the greatest possibility of arriving at the truth of what occurred. It is important the commission has appropriate discretion in carrying out its functions. There are likely to be complainants whose allegations are incapable of leading to a finding of abuse. We need the commission to work on the evidence to allow it to find out the truth of what happened. Requiring the investigation committee to agree in advance with representative groups the circumstances in which this would arise would be an impossible task and would hamper its work and independence. It is important to allow the commission the flexibility to obtain as full a picture as possible of what took place over many years so it can produce a report that is valuable to society.

The amendments were never intended to stifle the commission in its work. They are intended to provide criteria whereby one can identify why certain people were called before it. There is a vagueness about the vast majority of the Minister's words and the terms used by Senator Fitzgerald like "most representative" and "allow the commission discretion". The complainants and the general public will want to know why these criteria are not there and what determines if somebody is called before the commission. That is the kernel of the proposed amendments. They are not intended to stifle the progress of or to restrict in any way the workings of the commission.

There may be general circumstances where the commission may decide it does not need to hear further evidence because it already possesses a substantial body of evidence enabling it to produce a report. There may indeed be circumstances where it is felt that putting an individual through an adversarial hearing may be too much for that person, though the commission may not wish to say that to him or her. If the criteria are too tight and pre-ordained it does not allow the commission the flexibility to do its work properly which is why we do not propose to accept the amendments.

I return to the important issue of the counsellor. The facility at the redress board, which Mr. Justice O'Leary pointed out to me and which I explained yesterday, whereby a person may at the board's expense have present a counsellor with whom he or she has built up a relationship is also available at the commission. If the individual's own counsellor is not available he or she can indicate that in advance and a counsellor can be provided. That extra support is not being taken up as much as it should so it is necessary to highlight it.

The commission needs to get as full and accurate a picture as possible of what happened to enable it to produce a report without being too confined by these criteria.

I thank the Minister for highlighting the amount of moral support available to victims. I suggest the Department of Health and Children publicise it because not many people realise it is available and they would welcome it.

Amendment, by leave, withdrawn.
Amendment No. 4 not moved.
Section 4 agreed to.

I move amendment No. 5:

In page 7, to delete all words from and including "but" in line 42 down to and including "abuse" in line 44.

The Bill provides that an alleged abuser will only be identified if he or she has been previously found guilty in respect of an offence involving abuse. I ask the Minister to outline carefully the reasoning behind this change. The amendment will limit the commission's discretion in respect of naming persons who have been convicted of an offence of child abuse in a case being heard before it or otherwise.

While I acknowledge that Mr. Justice Ryan is of the view that the commission of inquiry should focus primarily on malfunctioning in the system rather than on individual wrongdoers, I request additional clarification on how the needs and wishes of victims will be assured under the terms of this legislation. There are some 1,300 cases before the commission at present. The representative groups of the victims are hopeful that individual findings will be made. It was clear from last night's radio programme that the person being interviewed could name neither her abusers, of which there were many, nor the institutions in which she had been abused. She would have been relieved to be able to name the institutions and her abusers but was prevented from doing so.

This goes to the core of what the commission is trying to achieve and what it can and cannot do. It has been examined in considerable detail by Mr. Justice Ryan in his review of the commission. He looked at other child abuse inquiries in other countries to see how they had dealt with the issue. His views on the subject, which are reflected in this legislation, have been published. The purpose of the Government in setting up the commission, and indeed that of Mr. Justice Ryan, was that it should determine what happened and what was so wrong in society and in its institutions at the time that allowed it to happen. It does not focus on individual wrongdoers to discover cases of abuse but on the general situation. If it were to seek to discover cases of abuse then that would involve criminal trials. We would end up turning 1,300 cases into mini-trials and that is not what the commission is being established for. If it names individuals it would have to deal with people trying to defend themselves and clear their name regarding events over the past 40 years. He has said he will stick to naming people who have already been found guilty. It is important to separate the criminal from the commission. It is not necessary or desirable, from the point of what this commission is trying to achieve, to start naming individuals. We want to know what happened, why it happened and how we can make sure it does not happen again. If people wish to take criminal proceedings, the courts are the place for that, not the commission.

The main thing many of the abused persons wanted was a situation where the people who abused them had no hiding place but were brought out into the open and identified. At the time the Bill was on Committee Stage in the Dáil I heard people making submissions to the effect that they were frustrated and aggrieved that there was somebody out there who had abused them savagely but was still somehow protected. While they cannot ever have satisfaction in their lives, on account of what they endured, they want it made public who their abusers were and the institutions in which the abuse took place. They want to know where their abusers are, because many of them are still alive. That is what they hoped for from the Bill and that is why I tabled the amendments.

It might be helpful to outline for Senator Ulick Burke, Mr. Justice Ryan's position in his paper explaining why he does not wish to go down this road. He stated that a policy of identifying individuals may inadvertently have a number of negative implications for victims — which is not what anyone would wish — for several reasons. First, the policy of identifying and apportioning responsibility holds open the possibility of some abusers being exposed and might victimise those whose abusers are not exposed. Second, some victims might feel rejected and discriminated against by virtue of the fact that their abusers were not named while others were, despite the fact that the abuse perpetrated against the unnamed victims was far more heinous than that perpetrated against those who were named. Third, as the committee has the discretionary power to identify individuals, every person whose good name or reputation may be infringed by such identification has the right to the full range of constitutional protections, thus transforming each case before the investigation committee into a mini-trial.

That is Mr. Justice Ryan's position as set out in his paper on this issue from May 2004. He is attempting to protect the victims so one category is not treated differently to another and to avoid turning everything into a mini-trial. I respect that as well as the manner in which he is attempting to do his work efficiently.

Amendment, by leave, withdrawn.
Section 5 agreed to.
Amendment No. 6 not moved.

Amendment No. 7 is ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 7 not moved.
Question proposed: "That section 6 stand part of the Bill."

Although I accept the ruling on amendment No. 7, how can Members get confirmation regarding the resources made available under section 6? What guarantee is there that the resources which are required in many different ways will be made available and the frustration of the past will not recur? That was the sentiment behind the amendment. It specifically mentioned the Taoiseach to reflect the desire to transfer the commission from the Department of Education and Science to the Department of the Taoiseach.

As I stated earlier, the Department of Education and Science has provided the commission with all the resources it has sought. A total of €10 million has been given to the commission for administration costs. In the Estimates process, a total of €21 million has been provided for administration to cater for this year and the following two years. The commission has a staff of 53 and any resources requested by it have been put in place as quickly as possible. These are the figures sought by the Senator to show how good the relationship is between the Department and the commission as well as the level of resources which have been provided to it.

Question put and agreed to.
Amendment No. 8 not moved.
Section 7 agreed to.
Sections 8 to 20, inclusive, agreed to.

I move amendment No. 9:

In page 14, between lines 27 and 28, to insert the following new subsection:

"(3) The Commission or a Committee may invite a person who has given evidence or made a submission or statement to or before it before the passing of this Act to supplement that evidence, submission or statement having regard to changes made to the functions or procedure of the Commission or a Committee by this Act.".

This amendment is to provide for the fact that previously the commission's procedure was different. My understanding is that the system calling people to give evidence before the commission differed. It is now grouped under institutions whereas there was a different procedure before this. The section as a whole pertains to transitional provisions and the amendment attempts to ensure that someone who gave evidence under the previous procedure can be recalled to give further evidence or clarifications and can be fitted in with the new procedure, if appropriate. I will be interested to hear the Minister's comments on the proposal.

The commission and each of its committees have the power to recall further evidence from someone who has already been before them or who has made a submission to the commission. This amendment is unnecessary as they already have that power.

Amendment, by leave, withdrawn.
Section 21 agreed to.

I move amendment No. 10:

In page 14, between lines 36 and 37, to insert the following:

"‘educational service' means a service provided by a recognised school or centre for education (within the meaning in each case of the Education Act 1998) or by a person or body specified by the Minister who provides a programme of education, training or instruction;".

The Labour Party felt it would be helpful to define what is meant by educational service, so the parameters would be set out as to what could be funded under the legislation. It would be helpful to have that issue clarified so people would know where they stood. Although the amendment does not refer specifically to the issue, someone mentioned to one of my Labour Party colleagues that child care could also possibly be funded. If someone took up education as a result of this legislation, the cost of child care could be prohibitive for that person. This is merely an aside. Perhaps the Minister will clarify whether child care might be provided for under the funding.

Senator Tuffy's second point negates her first point. If the term "educational service" was restricted in the way outlined by Senator Tuffy, it would probably remove the board's flexibility to cater for something like child care. When I heard that one person opted for driving lessons, I realised that while driving lessons can open up many opportunities for people to secure employment, they would not be taken in a school recognised by the Department of Education and Science. We must have this kind of flexibility. Other people opted for apprenticeship courses, dance lessons, grinds, bus driving, music lessons and swimming lessons. As each individual application comes in, one must examine the circumstances of the person to see how he or she might benefit from it.

I know it was not Senator Tuffy's intention to narrow the options and I accept there must be some guidelines or criteria as a substantial amount of money is involved. However, with the establishment of an independent board, it will be able to outline the criteria for payments of grants and will also be obliged to publish a report every year, which will be laid before the Houses of the Oireachtas so it can be monitored. However, it is important not to be overly restrictive for the very reasons mentioned by Senator Tuffy.

I accept the Minister's comments.

Amendment, by leave, withdrawn.
Section 22 agreed to.

I move amendment No 11:

In page 15, line 4, to delete "one year" and substitute "three months".

The sentiment behind this amendment is to get the education board up and running in the shortest possible time. While certain steps must be carried out to facilitate its proper establishment, when the Oireachtas dealt with the Education for Persons with Special Educational Needs Act 2004, it agreed to pass an order establishing a special education council prior to the passing of the Act to allow for its speedy implementation. All agree that it is important that this particular board be established and put into operation as quickly as possible.

I do not intend to delay the establishment of the education board as it is important. Equally, however, a period of three months will be too tight. An ad hoc committee already administers the scheme and it has taken applications for the coming school year, 2005 to 2006. It is important that this group should be allowed to continue with its work as it deals with the applicants. The interim period would allow the board to look at the criteria, procedures and the application process. As soon as that board is set up, the ad hoc group would end its work. However, the ad hoc group is in the middle of very valuable work dealing with the next academic year. I propose to allow it to get through that period and then set up the board immediately.

Amendment, by leave, withdrawn.
Section 23 agreed to.

I move amendment No. 12:

In page 15, between lines 31 and 32, to insert the following new subsection:

"(7) The First Schedule to the Freedom of Information Act 1997 is amended at paragraph 1(2) by inserting ‘the Education (Former Residents of Certain Institutions for Children) Finance Board' after ‘the Defence Forces,'.".

The purpose of this amendment is to bring the education finance board under the terms of the freedom of information legislation. It is important that its work is open and transparent and that information about it is available to the public in the same way as information about other bodies is available.

I agree with Senator Tuffy that the workings of the board should be subject to freedom of information but this is not the way to do it. I understand the way to do it is for the Department of Finance to include it in the Schedule of the freedom of information legislation. As soon as the board is established, I intend to request the Department of Finance to include it in its next Schedule.

Amendment, by leave, withdrawn.
Section 24 agreed to.
Section 25 agreed to.
Question proposed: "That section 26 stand part of the Bill."

I received a considerable amount of correspondence, as I am sure the Minister did, from people who are concerned about the constitutionality of setting up the board and the fund because the agreement between the Conference of Religious in Ireland and the then Minister for Education and Science was reached after the Bill went through the Houses of the Oireachtas. No more than anyone else, I am sure the Minister would not want anybody to challenge the fact this board is being set up in amending legislation. I note the Minister said that "relevant deed" means the deed made on 5 June 2002 between the Minister for Finance of the one part and the persons listed in the First Schedule to that deed of the other part. I gather the Minister has executive powers whereby she can settle claims. It might have been better if this had gone before the Dáil but it may be perfectly all right. I would be grateful if the Minister would indicate that she has been assured it is all right so that the trust is on a statutory basis and will allow for the money to be used.

I am advised that the office of Minister for Education and Science is a corporate sole under the Ministers and Secretaries Act and, as such, the Minister has the power to sue and be sued. In dealing with litigation, the Minister can decide upon strategies to reduce or minimise his or her financial exposure. The indemnity entered into with the religious congregations is an example of the exercise of this power.

I thank the Minister for that clarification.

Question put and agreed to.
Section 27 agreed to.

Amendment No. 13 in the name of Senator Tuffy has also been tabled by the Government.

Government amendment No. 13:
In page 18, line 7, after "by" to insert "whom".

I thank the Minister for accepting our amendment. It corrects an error my colleague, Senator Ryan, discovered yesterday and he must take credit for spotting it. It took me a while to see the error when reading the section.

The shoe is on the other foot and I thank Senator Ryan for highlighting this.

Amendment agreed to.
Section 28, as amended, agreed to.
Section 29 agreed to.

I move amendment No. 14:

In page 18, subsection (1), line 33, after "Finance" to insert the following:

"and these employees shall be selected following an open selection procedure".

This amendment seeks to ensure that a representative cross section of individuals can be considered for appointment, representing the different victims' groups, individuals and perspectives.

Section 30 provides for the employment of staff by the board subject to the consent of the Minister and the Minister for Finance in regard to numbers in employment, remuneration and other terms and conditions. In recruiting and employing employees, the education finance board will, like any State board, be expected and required to operate according to best practice in this regard and the legislation will not preclude the board from holding open competitions to select and appoint the staff it needs. However, I do not believe it would be appropriate to tie the hands of the board unduly in the way the proposed amendment would. For example, it may be to the board's advantage to appoint a person with relevant experience and expertise in adult education on a secondment basis.

While the Departments of Education and Science and Finance will have to assess the staffing needs of the board, the recruitment and appointment of staff will largely be a matter for the board itself using, where appropriate, the services of the Public Appointments Service. At the end of the day, it will have to get the best qualified people for the job while ensuring that legislative requirements in regard to equality and non-discrimination are complied with. I do not believe the amendment tabled by Senator Ulick Burke is necessary or appropriate because it may unduly, or unintentionally, limit the flexibility of the board in the appointment of staff.

Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
Section 30 agreed to.
Sections 31 to 33, inclusive, agreed to.

I move amendment No. 16:

In page 20, before section 34, but in Part 4, to insert the following new section:

"34.—Nothing in the Residential Institutions Redress Act 2002 prohibits an applicant from disclosing the fact that he or she made an application to the Board and the name of the institution, the category of abuse and injury and the amount of the award that are referable to that application.".

The purpose of this amendment is to allow applicants to talk about what happened at the redress board. The legislation, as it stands, is too restrictive in that regard and people should be allowed to give this type of information. Our amendment is quite narrow and does not allow for certain things to be disclosed. It is very much a general permission to disclose information as opposed to one being able to be specific about what happened at the board, naming people and so on.

People are going through a very difficult process in terms of what they have experienced and the fact they must go before the board. I hope the process will result in people feeling some relief afterwards but if they are not able to talk about it in the way we have outlined, it would not be helpful to them. We do not see the harm in allowing what we have provided for in our amendment.

There has been correspondence in the newspapers on some people's experience of going before the board. Obviously, certain things must be kept confidential but people should be able to talk about their experiences in a restricted way so that they get the closure required. That is what we are trying to allow for in our amendment which is very restrictive in terms of what it allows.

It is very hard to understand why people should be criminalised for disclosing that they were abused. I support this amendment because from what one reads in the newspapers and hears victims who have been before the redress board say, people would like to be able to say they were justified in making their complaint and that the State recognises this and has done something to try to give them some recompense. It is difficult to understand why another shameful secret should be made of this procedure. It was put to me in the case of the original abuse that sometimes people were given sweets or money to shut up. For them, to give them a few euro to keep quiet is the same thing happening again. It is important that the amendment be accepted.

Section 28(6) of the Residential Institutions Redress Act prohibits the publication of information concerning an application or an award made under the Act that refers to any other person, relevant person, or institution by name or which could reasonably lead to the identification of any other person, relevant person, or institution. This is important because the redress board does not operate like a criminal court. It operates on a much lower threshold of proof. It does not make any finding of guilt in regard to any individual or institution. It is a confidential process held in private. Were one to allow people to start talking about names and institutions there is no doubt that many of these cases would end up going before the courts and compromising the whole process.

Many people want the process to be private and prefer it to be private. It offers them an alternative to pursuing civil or criminal court cases, certainly civil court, cases in seeking compensation for their injuries. The confidentiality provision protects the victims but it also protects the good names of other people who may not have been investigated per se or have had the right to clear their good name while the names were mentioned at the commission.

That a person has applied for or been granted redress does not stop them from criticising or publicising any wrong suffered. It is only the disclosure of the fact of the application to the redress board and any award or the name of any institution or person in the context of the application that they cannot speak about. A person may speak about his or her experiences in an institution but he or she cannot include any information relating to the fact that he or she made an application to the board. It does not prevent them speaking about their experiences, as many have done. If it were to be opened up so that names, institutions and so on could be mentioned we would end up trying to protect the good name of everybody. That is not what this is about.

Amendment, by leave, withdrawn.
Amendment No. 17 not moved.
Question proposed: "That section 34 stand part of the Bill."

All the institutions and the residents of those institutions over the years have the opportunity, through this legislation, to tell their stories. Will the Minister agree there are other children who have been abused who do not have access to this structure to tell their stories and have redress? It is important that provision be made for day schools. I hope the Minister will see the merit of allowing that facility to be extended to them and, likewise, those who took part in clinical trials.

For those who took part in clinical trials in those institutions the sad reality is that they did not have a choice, they were forced into a situation of involvement. I do not know why clinical trials in the institutions were not included as an integral part of the process. I appreciate it is a particularly difficult area and I hope that short of including it in this instance, the Minister would indicate that the issue of clinical trials will be dealt with in due course because there are victims. Perhaps the Minister will indicate how this particular group will be dealt with in the future?

The inclusion of day schools has been discussed a number of times. The Residential Institutions Redress Board was established as an alternative mechanism to the courts to allow people to get redress. These were people who were former residents of institutions. The key point is that the State had a significant supervisory or regulatory responsibility. The same is not true of day schools. The children who were in institutions were separated from their parents and did not have the care and protection that families would usually enjoy. They were in the care of those institutions 24 hours per day, seven days per week. The State was responsible for putting them there and the institution was responsible for caring for them. However, the statutory duty was not met. The same cannot be said of the day cases. The commission deals with day school cases and has indicated that it intends to interview each of the day school applicants. It can then make recommendations on the issue of the day school cases should it so wish.

Vaccine trials will not be dealt with by the commission because the courts have already ruled that the investigation of these children under the commission legislation is ultra vires and cannot, therefore, be allowed to continue. It is primarily a matter for the Tánaiste and Minister for Health and Children. I understand procedures are being put in place to revoke the statutory instrument which provided for the additional function of investigating the vaccine trials as part of the task of the commission in line with the judgment of the courts. The courts have decided that because vaccine trials do not comply with the description of abuse under the legislation they will not qualify for redress.

Question put and agreed to.
Section 35 agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

I thank the Minister and her officials for the time and effort they have put into this delicate issue. All of us want the best possible outcome for those who were so sadly abused in Ireland for decades. Apologies have been made and that is all any of us can do. It is important that the board be as fine-tuned as possible to enable those who wish to do so to tell their stories and that the public also has a knowledge of what happened. It is important also that those who can be indemnified are indemnified.

The educational aspect is extraordinarily important because some got little or no education. It is important that they and any relatives who may have suffered because of the lack of education are in a position to avail of it now. I thank the Minister and her officials for all the help they have given to all of us who have taken part in the debate.

I too thank the Minister and her officials for the work they have done over such a long period. Since 1999 when the Taoiseach made the apology, the Department officials and various Ministers have worked hard to bring to a conclusion the hardship and the terrible trauma that so many people in this country experienced in the care of the State and in particular under the auspices of the Department of Education as it was then called.

What happened was a tragedy. The State was negligent in not having inspection mechanisms thereby allowing the abuse in those institutions to continue. As has been said in both Houses on a number of occasions the covering up that went on to justify a continuation of the most horrible tragedies ever known was unbelievable. A number of lives and families were destroyed. The presentations by the victims were horrifying. We must have the utmost confidence in the current Minister for Education and Science and her officials that everything that can possibly be done will be done and that the opportunity to commit such terrible crimes will never arise again.

As I have said on many occasions in this House, I regret that we lost the former chairperson of the commission, Ms Justice Laffoy. She expressed regret at having to resign because of issues that were badly handled by the former Minister for Education and Science, Deputy Noel Dempsey. I say this with no recrimination towards the present Minister for Education and Science or her officials. If there had been greater understanding and greater visible support for Ms Justice Laffoy at the time, much of the recrimination that has taken place from 1999 to today would not have been necessary. What happened during that period gave the wrong message to many people who had been hurt. Thankfully all of that has been redressed and I look forward to the Minister returning to the House on a regular basis to indicate the progress made in terms of satisfying, if possible, those seeking redress so that they can return to some sort of normal lives for themselves and their families. I hope the Government will not be found wanting in the future.

I concur with the comments of Senators Henry and Ulick Burke. I thank the Minister and her staff for their work on this legislation. The education finance board is a very worthwhile initiative and I hope it will be successful. It is a very positive way to help compensate the victims of abuse and to help them in their future lives. I agree with Senator Ulick Burke that it would be useful to get further updates on how the process is working.

I endorse the sentiments expressed regarding the Minister. I compliment her on the manner in which this Bill has been taken in both Houses. It is no great surprise to me that the Minister is a person of great clarity, as I have come to know over the years in her work in other areas. I am delighted that she has piloted this Bill through the Houses. It establishes a further milestone in the learning curve for us all.

Along with other countries we have been on a learning curve as to how to deal with these most horrible experiences, the detail of which we will not mention now. I congratulate the Minister for the accommodating and understanding manner in which she has steered the Bill through the other House and particularly this one. She has clarified all the issues brought to her attention. I also thank the Department officials for their helpful and accommodating assistance.

I refer briefly to a reference made to one of the Minister's predecessors. In fairness to all concerned at that time we were at a very early stage and I do not want to dwell on the matter. The Department of Education and Science had sought to learn from the experiences in other countries. Some of the decisions at the time could have been made with greater enlightenment. However, it is not for me to criticise anybody. When mistakes were made these were acknowledged. We can learn from mistakes and make improvements, and we are seeing the improvements.

I am very heartened by this Bill, which addresses head-on the principle that justice delayed is justice denied.

I have attended briefly during the passage of the Bill and have listened attentively to the debate. I thank the Minister and her staff for their work. Many views have been expressed on the abuse that took place and it was important for this Bill to be quickly passed by both Houses. While some people were responsible for serious misdemeanours in the past, we must also recognise that thousands of others did an excellent job in many of those institutions. I compliment all involved and I thank the Opposition spokespersons for their co-operation on this important legislation.

I thank the Senators for their co-operation and commitment to the work of the commission. Senator Henry used the word "delicate". This is a very sensitive issue. We all want to do as much as is possible for the survivors and to ensure that the processes we introduce are speedy, efficient and get the desired results for them. In my work I am very fortunate in having the support of a tremendous group of officials as has been recognised by the Senators. They are dedicated to their work and give it considerable time and commitment, which is not always easy when dealing with such a sensitive matter.

Any difficulties that may have arisen in the past did not arise out of any maliciousness or bad faith on the part of anybody. Nobody could have anticipated the number of applications that were made. The whole country was surprised and officials were overwhelmed by the way applications were made so quickly, which gave rise to considerable documentation. We must remember that they needed to find relevant documentation going back over 40, 50 or even 60 years. In so far as information was not provided quickly it was because of an inability to do so in the timeframe provided. Everybody worked in good faith. We are now making progress building on the apology made in 1999.

I have been very fortunate in working with Mr. Justice Ryan and also with Mr. Justice O'Leary on the Residential Institutions Redress Board, both of whom have given great commitment to the process. With the passage of this legislation I hope that we can be satisfied that we are doing our bit as legislators to redress some of the wrong inflicted on people on the watch of previous administrations in an earlier generation.

Question put and agreed to.