Commission to Inquire Into Child Abuse Bill, 2000: Committee Stage (Resumed).
SECTION 5.
Debate resumed on amendment No. 30:
In page 6, subsection (2)(a), line 48, after “it” to insert “, including methods of compensation”.
—(Deputy R. Bruton.)
The Minister was of the view that the Oireachtas should just offer a general invitation to the commission to make recommendations whereas I and other members felt it was desirable to flag some particular issues on which we believed the commission should make recommendations. One of those issues is the subject of amendment No. 30, namely, methods of compensation.
The Minister felt it was something of a slight on him to ask that the commission would also look at this in that he indicated at the end of Second Stage he would look at it himself. I do not see it as being in any way a slight on the Minister's good intentions. However, I believe the commission will have important and worthwhile things to say. It would be interesting and valuable for the Minister, when he comes forward with recommendations, which I hope will be at an early date, to have had an input from the commission, which will undoubtedly have interesting things to say about compensation. We are eager to have early progress reports from the commission. It would be quite compatible with the Minister acting early on the issue of compensation to also have an input from the commission on it.
This is a worthwhile amendment. I did not table it to prevent or spancel the Minister from making progress if he and the Government feel they can make progress. However, we in the Oireachtas have a right to express our views on what the commission should look at. This is a critical issue which should be looked at. If the Government fails to do that, I will expect the commission to have worthwhile things to say on it.
We discussed this for quite some time and Deputy Bruton has summed up his view on it. It is my view that the commission is free to make any recommendations it wishes. It is an independent statutory body. We have provided in broad terms that the commission may make any proposals it wishes in that regard. I will continue, in any event, along the lines Deputy Bruton mentioned. We discussed that the last day. I only said that by way of saying I was following through on what we had discussed on Second Stage. The commission has all the powers to make any recommendations it wishes in that regard and I do not see any need for the amendment.
Amendment put and declared lost.
I move amendment No. 31:
In page 7, between lines 3 and 4, to insert the following subsection:
"(3) Without prejudice to the generality of subsection (2), it shall make recommendations in relation to the—
(a) training of staff dealing with children,
(b) regulatory supervision and inspection of institutions,
(c) procedures for investigating complaints,
(d) representation of the interest of the child in the various processes,
(e) legislative framework,
(f) adequacy of visiting programmes and other avenues of community involvement,
(g) professional resources available to institutions,
(h) maintenance of records,
and such other matters that it believes are appropriate.".
I suspect the Minister's response to this amendment will be similar to that which he gave in the case of compensation. By way of background, this amendment specifies areas where I, as a Member of the Oireachtas, would like to see the commission make recommendations. Many of these are self-evident. I suppose the Minister will say that the commission will automatically look at the these matters. I have listed issues such as the training of staff, regulatory supervision and inspection of institutions, procedures for investigating complaints, representation of the interest of the child in the various processes, the legislative framework, the adequacy of visiting programmes and other avenues of community involvement, the professional resources available to institutions and the maintenance of records.
There is a desirability in specifying some areas in which we would like to see recommendations being made. I have read some of the previous commissions of inquiry in other jurisdictions and what was noticeable was that they looked exclusively at the errors of the past. They did not really look at what was happening now, nor did they interview children who are in institutional care today, to see how well their needs are currently being provided for. If we specifically request the commission to make recommendations about the current methods in place it will require it to actively examine not just the complaints that come before them — which will almost exclusively be from people who are no longer in institutional care — but will also look at how well those who are still in institutional care are provided for.
I have put forward this list for inclusion in the legislative framework. I am far from happy that the existing legislative framework for inspection and supervision of residential care is satisfactory in that different procedures are in place for different types of institution. We do not have the statutorily independent and uniform supervision of child care facilities which we should have. We should certainly hear the views of the commission if the Government does not propose to make changes in the present framework.
The Minister may say that these things are already within the ambit of the commission to make recommendations on, and no doubt they are. However, there is no harm in the Oireachtas alerting the commission to its desire for it to examine present practice. In that way it would not only examine the past but would also examine what is currently happening in institutional care. We are far from perfect at the moment. One only has to see the number of children who are homeless as well as those with acute behavioural problems for whom places cannot be found. There are many issues to be dealt with. The commission will assemble a valuable amount of evidence and insight which should be brought to bear on what we are now doing as well as on what happened in the past. That is the reason I tabled the amendment.
I have no difficulty with any of the issues outlined in the amendment. I take it, however, that these are encompassed in the powers which we are giving to the commission. The section states that:
The Commission may include in the report any recommendations that it considers appropriate including recommendations in relation to the action that it considers should be taken—
(a) to alleviate or otherwise address the effects of the abuse referred to in section 4 on those who suffered it, and
(b) to prevent where possible and to reduce the incidence of abuse of children in institutions and to protect children from such abuse.
Within those headings there is scope for all the matters in the Deputy's amendment and others. I have no difficulty in conveying to the commission the kind of things the Deputy has in mind in that respect. I appreciate they are the kind of things he would like it to deal with, but I do not want to tie the commission's hands. I want it to deal particularly with the very serious abuse which has occurred and to give its findings and recommendations for the future. I do not want to dilute unduly the rest of its work.
At the same time, the commission will be completely free to make recommendations. I would be quite happy to provide the information in the Deputy's amendment as a guide to some of the things we had in mind.
I support Deputy Bruton and I would like to tease out this issue a little more. What the Minister has just said is helpful — that what has been discussed at this committee will be conveyed to the commission as a concern. We are asked to make a declaration of trust in the commission and I do not have a difficulty with that. Like Deputy Bruton, however, I also have a legislative concern that what we do through legislative action will be integrated in the legislation which may be parallel to the actions of the commission, and that it will inform related legislation
I must voice a concern which is expressed in another amendment as regards the date itself, for example. I cannot believe that abuse has totally stopped from the moment significant programmes reach the public airwaves. I would like all cases that run up to the point at which the legislation is enacted and signed to be taken into account. In another amendment I have argued the case that the State's deficiency is such that it should have covered the whole period of the State's existence. I will not go back over that ground because we have already gone over some of it. I argued for it to go back to 1922 and that remains my view.
I strongly support Deputy Bruton on the need to train staff who deal with children as well as the regulatory supervision and inspection of institutions, which is totally unacceptable. The last day, I raised my concern that so many of the supervisory authorities — including those gifted with privilege, such as judges and others — had continued to sentence people to settings where it was suggested that they would be raped. I am not saying they knowingly did so, but they knew there were allegations of behaviour that would constitute an abuse of children and that its effects would be quite long-term.
So far I have seen nothing to suggest that the procedure for investigating complaints has been so radically transformed that a person would be able, under the existing regulatory supervision and inspection regime, to have their case heard so independently as to ensure that they would be redressing the particular case and reforming the general situation.
The representation of the interest of the child in the various processes is an issue but I want to be fair. If the Minister tells this committee that he will convey to the commission the feelings of the committee on these matters, I accept that as a good and helpful action. I do not, however, regard it as sufficient. The trust we are asked to place in the commission should not be such as to quench our concern as legislators or give an assurance that we will welcome everything the commission has to say. We want to be assured that it will at least speak on these issues. That is the logic of my position. The Minister's reply will be that the commission is being set up with general and specific instructions, that it can include all this and more and that we must accept that. The position I support is that we are willing to accept the commission will do all this and more, but it is of such concern to us that I do not see it as an encumbrance on the work of the commission for us to specify that which concerns us most.
As always, Deputy Higgins has summarised the argument extremely well. Like Deputy Higgins, I welcome the Minister's agreement to notify the commission of our concerns, which is worthwhile. It would also be worthwhile if he notified the commission of the thinking behind these amendments as elaborated upon by us. We have genuine concerns. In one country a commission of inquiry took the step of seeking the views of children in care today to assess their risk of abuse. That commission found such risks to be present and real and found few systematic programmes to reduce risk. They found that risks can seldom be identified in the flying visit of an inspection. I am not confident that the position is so different in Ireland from that country where the commission of inquiry, despite the public authorities being aware of much evidence of abuse, discovered there were few systematic programmes to reduce risk. It is important that we look forward and see how the different matters knit together to provide an environment in which children are safe. That is my concern.
I will not press the amendment, but I would certainly like the Minister to convey not only the wording of the amendment but the concerns which underpin it to the commission.
I thank Deputy Bruton and will convey that to the commission. I appreciate the concerns expressed. We may have a very strong and firm finding from the commission which could open the necessity for further investigation, either separately in the interim or arising from the commission's findings.
The Deputies mentioned the current supervision system and this is something which might be examined in the meantime. It is an urgent matter and I will certainly give some attention to it. A new board is about to be established in that regard.
It does not have a universal mandate or legislative underpinning as I understand it.
In any event I will convey the intentions and feelings of the Deputies.
I will withdraw the amendment but I reserve the right to submit it on Report Stage to hear further how the Minister proposes to handle these issues. His thinking might have developed by that time.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 7, subsection (3)(b), line 14, after “persons” to insert “where it is satisfied that they were significantly culpable”.
I accept the principle of the amendment which conforms with the intention of the Bill. I would like to have legal and drafting advice on the matter for Report Stage.
I propose submitting the amendment on Report Stage, but will be happy if the Minister tables a more robust amendment.
Amendment, by leave, withdrawn.
I move amendment No. 33:
In page 7, subsection (3)(d), line 18, to delete “not”.
This is an issue of principle and although the amendment proposes to delete one word it probably goes to the very heart of how the commission will operate. Under the current provision it is proposed that the commission "shall not contain findings in relation to particular instances of alleged abuse of children". I have submitted this amendment more for the purpose of debate and getting a feel from the Minister regarding his thinking behind such a provision.
There is no doubt this provision will make people who have suffered as victims less inclined to co-operate if they feel they have to bare their soul and with no finding at the end of the process. How is it the commission will draw conclusions of abuse by an individual without making findings in relation to particular instances? How can a case be built resulting in the commission making a finding that a person is guilty of abuse on the balance of probability without having made findings in relation to particular cases? It goes to the heart of the work of the commission and it is important on Committee Stage to hear from the Minister how he reached the decision that this will be the way to proceed. I am not against this provision but it is an important issue which has not been debated on Second Stage. I would like to hear the Minister's views on this.
The commission having considered its terms of reference and the powers it would need, concluded in its report that the legislation should preclude the commission from "making specific findings of fact in relation to specific allegations of abuse". The primary reason for the restriction is that many of the cases are either already or are likely to be the subject of civil litigation or criminal proceedings. For the commission to make findings in individual cases would, therefore, be to prejudge those proceedings. This would run the risk of interfering with the judicial process and would be unconstitutional.
It may make conclusions in particular cases following very thorough examination but it cannot publish the conclusions. However, it may publish conclusions of a general nature in relation to particular institutions. On Second Stage we referred to the fact that a current case of a criminal nature would be brought to the immediate attention of the Garda but, on the other hand, a prima facie case for criminal proceedings would be referred to the DPP. The commission cannot cut across these procedures. However, it would make general recommendations and come to its own conclusions in particular cases.
I can understand that many cases might be the subject of litigation and that the commission might be constrained in relation to cases where litigation is taking place. However, I do not understand why a blanket provision is required by constitutional procedure in respect of other courts. If a survivor of child abuse submits to investigation against a background where no findings can be made that they were abused, will they be subjected to hostile cross-examination of their evidence, which is the norm in court cases? We are aware of this in relation to sex abuse cases where very often victims must almost relive what happened to them through hostile cross-examination of themselves, their behaviour and their history under the guise of the constitutional right of the accused. Does this mean victims of such abuse will have the worst of all worlds in this process in that they will have the trauma of hostile cross-examination but no finding, other than general findings in relation to the general case?
On the other hand, if there is not an opportunity for hostile cross-examination, I do not understand how the commission will be able to make any findings of facts because it is the right of anyone accused to have an opportunity to defend themselves and question the evidence presented. The Minister said these investigations will be as sympathetic and understanding as possible but how will this work in practice? I worry about survivors going to the commission, having a very hard time and feeling they did not achieve the outcome they expected.
On Deputy Bruton's amendment, is the Minister saying that the overriding consideration must be that if cases are taken in court, reports such as this should not prejudice a particular case which could lead to that person not getting a fair trial? Will the Minister elaborate on this issue? How will the commission conduct its inquiries? If one makes allegations against a person, to what extent will that person be questioned about the allegations and to what extent will the allegations be checked out? To what extent will the person named as perpetrating the abuse be given a chance to see the evidence in order to provide rebuttal evidence if necessary? To what extent might that evidence, having been heard in that way, prejudice a court case which might be taken by the abused person or by the DPP? This needs to be teased out further.
If justice is to be denied to anyone who is abused because of a report or an element of the commission's report, that would be a bad day's work on our behalf. This would diminish the impact of our work and increase the trauma and pain of abused people. It is very important that we tease out what exactly is involved in this regard.
First, we must be careful not to prejudice any criminal charge that might be pending. Deputy Bruton recognises that the forum is intended to be informal and sympathetic. If a person makes a specific allegation that "X" was involved in abuse, the commission will be able to report that "X" was involved in abuse but not that "X" abused "B" or "A" abused "B" as a specific person, so to speak, because that is a specific criminal charge in relation to the person. I understand this is how it will work in practice. We are working on the recommendation of the commission that the legislation should preclude the commission from making specific findings of fact in relation to specific allegations of abuse against particular individuals. For the commission to publish the fact that "X" institution or "B" person was involved in abuse is an allegation or finding about someone who is supervising or whatever, but to publish its view that "X" abused "B" would be a specific criminal charge and would have to go through this process.
The wording "shall not contain findings in relation to particular instances of alleged abuse of children" seems to be a construction of an instance rather than a relationship between two people. The Minister's argument is that one can protect, so to speak, the confidentiality in relation to "A's" actions on "B". This text widens this to a prohibition on identifying whether the instance happened or not, irrespective of the people involved. That is an important point on which I want to be very clear.
Can the Minister explain another more general point? A person who decides to attend the confidential committee must have his mind made up before he attends the committee and may not change it. What if, in the course of the recovery of his experience, the person changes his mind? He may come back and go to the other committee. I am clarifying this point as I speak.
That may happen; it could happen in a percentage of cases.
This is becoming more clear as I proceed. People who are before the committee and presenting their cases in total confidentiality would appear to have grounds for worry about two things which might happen. While they may find it therapeutic to tell their stories, they may be concerned that they are telling their stories to a body who might not report for two years. My background as a sociologist makes me think of a person who, having emptied himself of a story, says to himself, "Sure, that's all there is to it now". That disappointment could be relieved if a conclusion were arrived at in relation to the verification of an instance. A decision that an incident happened or did not happen would be a great relief to such a person. I ask the Minister to think about this point between now and Report Stage and, if necessary, come up with a new form of words. The text which reads, "The report shall not contain findings in relation to particular instances of alleged abuse of children", is a prohibition on deciding whether the instance is real or not. Surely it is possible to protect the boundaries, both in relation to a criminal charge and to the matters which are germane to the investigation committee, and still allow a finding on the instance which would be of great value to those who had decided to release themselves of their stories in total confidentiality.
Deputy Bruton's amendment seeks to amend a form of words which is general in its inhibition of the report of the commission.
Deputy Higgins makes a good point which goes beyond mine. It is clear from section 5(3) (a)that the commission may name an abuser. However it may not make any findings as to whether a person has suffered abuse. Mr. X may be named as an abuser but Mr. Y, who came to the commission, went through the investigative procedure and suffered a hostile cross-examination, will not hear the commission conclude that his story is substantially true. Perhaps this is as good as we can get and any further satisfaction may only be found in the courts. The process described in page 24 of the commission’s terms of reference is a tough one. The terms of reference state that those who are accused will have a full statement and may cross-examine the person making the allegation. The hearings will not be held in the sympathetic and understanding arena for which we might hope, except in so far as Ms Justice Laffoy, or whoever is conducting the hearings, will constrain lawyers in their approach to witnesses. I am sure Ms Justice Laffoy can go a long way towards creating an atmosphere in which the experience is not such a difficult one. This is the lingering misgiving in my mind with regard to people who go before the commission.
Let us consider the generality of what is happening. The commission is inquiring on behalf of the public into the child abuse which has occurred. In the process, it is providing counselling and a forum within which a person may state his case and have it heard. Where allegations have been made, the commission will examine those allegations. An individual may then avail of counselling and subsequently of compensation and may take a case which is a criminal case. If a criminal case is continuing at the time, the allegations will be taken immediately by the commission to the Garda Síochána or the Director of Public Prosecutions. The words "particular instances" refer to instances which can be identified as to the individual involved and the time and place when and where they occurred. It will be possible for the commission to say that abuse occurred, that someone in a supervisory capacity was involved in the abuse but not to name the person who was the subject of the abuse. This could involve a specific criminal charge.
Can that be clarified because it is an important point? The wording is "shall not contain findings in relation to particular instances of alleged abuse of children". If, for example, someone said an instance was part of a pattern of abuse which occurred during a period between certain dates and in a certain place, can the commission reach a conclusion in relation to that institution, place and period of time and the instances brought to its attention?
Yes, they can in relation to a period and place.
The commission cannot say to a person, "You were abused by such a person".
I am interested in the social and psychological impact on the person who has brought himself to the point of courage where he can appear before the confidential committee. Can an assent to his stories, as it is painfully told, not be managed by the commission? For example, the people who appear at the confidential committee may have attempted to tell their stories before. Many will have been afraid and some who tried to tell their stories may have been rebuffed so that it may be important for them to know that, at last, they are being listened to and their stories accepted. These are a category of people who fall short of going to the investigative committee and their cases are different again from those which may lead to criminal charges.
The commission can report on that.
The commission can report what it feels is appropriate although not on specific individuals. The commission will include in its one report elements from both reports.
Is it not the case that the commission will not be able to make a finding in relation to an institution unless that institution, as the learned judge said, is allowed to cross-examine?
That is correct in relation to institutions but Deputy Higgins spoke about a person's need for satisfaction in seeking a hearing to outline the abuse to which he or she been subjected. Such matters may be included in the commission's report.
I would be very surprised if that could be done legally; in other words, that the commission could make a finding that a person had been abused without giving the institution concerned any of the rights listed by the judge. I would have thought that one would be on very thin legal ground in making any finding——
No, the main findings will be made by the investigation committee. Deputy Higgins asked how a person can be satisfied that he or she has been listened to. It will be a matter for the commission to decide, having to listened to the person concerned, what is appropriate and necessary to include in its report.
I am getting more confused as the debate proceeds. As Deputy Higgins said a person will outline to the commission with great pain to himself or herself the circumstances of his or her life and the abuse he or she may have suffered in an institution or at the hands of particular individuals. The commission will prepare a report under section 5(3)(a) which states:
The report . . . may, if the Commission is satisfied that abuse of children, or abuse of children during a particular period, occurred in a particular institution, contain findings to that effect and may identify the institution and the persons who committed the abuse.
I am confused. Let us suppose Mr. X is named as an abuser in the commission's report and the case is subsequently taken to court. The judge may decide to throw it out because Mr. X was identified in the report without being given a fair chance to defend his name. The person who appeared before the commission with great pain to himself or herself will be very disappointed. I am concerned that the Bill will be seen as a sham which removes the opportunity for natural justice. That is the reason I asked whether an individual will be notified and called to give evidence if an allegation is made against him or her at the commission and to what extent this will prejudice any subsequent criminal or civil case taken against him or her.
We dealt with the relevant section last week. Fair procedure and natural justice must and will apply.
There is a need to return to the issue of the nature of the findings which will emerge from the confidential committee. It is a tricky issue as to whether the confidential committee can make any findings which will accord with constitutional rights. I do not know if it can go beyond the therapeutic dimension to make findings of a general nature in relation to specific institutions. It is being said that it can.
The matter can be clarified on Report Stage.
The matter will arise again on Committee Stage. The amendment does not deal adequately with the complexity of the different dimensions.
Amendment, by leave, withdrawn.
I move amendment No. 34:
In page 7, between lines 26 and 27, to insert the following subsection:
"(5) No body, institution or person shall be named in a report of the Commission unless they have been permitted to make submissions in their own defence.".
The Minister said that in natural justice this will happen in the case of the investigative committee. I am teasing out exactly how far the commission will be able to go in relation to the confidential committee. It is stated in a later section that the confidential committee will be able to make general findings in relation to specific institutions but it will not be able to name persons alleged to be abusers or persons who claim they have suffered abuse. Is there not a fundamental flaw in giving the confidential committee power to name institutions when there will not be cross-examination of a hostile nature or submissions by the institutions concerned in their defence? Can the two be balanced? It is my understanding from reading Ms Justice Laffoy's report that the confidential committee will have none of the trappings in terms of cross-examination and rebuttal. Yet, it is expected to make findings which can include the naming of an institution. How is this possible under the legal system?
The Deputy is correct on two counts. The confidential committee will make general findings in relation to the abuse suffered in institutions. This is feasible. To put the matter beyond doubt, amendment No. 47 to section 16 states that institutions cannot be named. It reads, "after "abuse" to insert "or any institutions".
The Minister is, therefore, placing an additional constraint on the confidential committee, that it cannot name any institution or person.
That deals with the point.
Amendment, by leave, withdrawn.
Amendments Nos. 35 and 36 not moved.
Section 5 agreed to.
SECTION 6.
Amendment No. 38 is related to amendment No. 37. Is it agreed that they be discussed together? Agreed.
I move amendment No. 37:
In page 7, subsection (2), line 44, after "Chairperson" to insert "and bearing in mind the need for members to have the confidence of those who suffered abuse and those who may be called to account for the running of the institutions".
This section deals with the membership of the commission. Subsection (2) reads:
The Government shall appoint a person to be the Chairperson and, after consultation with the Chairperson, persons to be the ordinary members of the Commission.
I am adding "bearing in mind the need for members to have the confidence of those who suffered abuse and those who may be called to account for the running of institutions". It is crucially important that members of the commission command the confidence of all sides and that there is confidence that the commission will work in an absolutely fair and impartial way. The Government must be extremely sensitive in selecting members in order to ensure that that occurs.
The Minister will be aware of misgivings about some prospective members of the commission. I am not in a position to comment on anybody whose name has been put forward. I am sure anybody put forward by Government will be a person of very considerable skill and reputation. However, in an instance like this it is necessary to bear in mind the old cliché that justice must not only be done but must be seen to be done. It is crucially important that any person nominated should have the absolute confidence of both sides. They will be submitting everything about themselves to this body and it will be an extremely tough arena for any survivor or person who is accused. There is, therefore, a need for extreme care in selection. I explicitly ask the Government to bear in mind the need for confidence, and where lack of confidence has been flagged, unless the Government can in discussions convince those who have flagged their lack of confidence, it should not proceed with any nomination. That is in no way to cast aspersions on the good character or good name of anyone who has been considered. It is just so important that we command the confidence of both sides.
My amendment No. 38 is similar to Deputy Bruton's except that it has the merit or demerit, depending on how one looks at it, of being that bit blunter. Deputy Bruton spoke about the necessity of ensuring maximum confidence in the commission. One can do this both positively and negatively. I have been moved by some of the representations I have received on behalf of people who, as very young children, less than two years old, were put into detention a long time ago, and people who with their siblings received combined sentences in the courts and so forth. From the point of view of people who were in that situation — and, unfortunately, we have the evidence of people who were — and who have attested to it, it is a reasonable requirement that the membership of the commission be at arm's length from all such institutions, State, semi-State and voluntary, non-judicial and institutional, so that the people on the commission who must arrive at a judgment on this story are beyond the slightest suggestion of a connection with an ethos of defence.
I do not want to delay on this, but we must take into account something that we may not want to take into account easily and it is that however slow the process and whatever the difficulties in trying to establish the best possible commission, it is coming after an incredible silence, an incredible neglect, and an even more incredible defence of the indefensible by the State, institutions and others. It is a very reasonable requirement on the part of those who come before the commission to be assured more than ordinarily that the membership does not have an ethos of defending the indefensible.
It is only natural that people looking back on what happened in years gone by say that circumstances were different. I am not at all moved by that. There are objective issues to be answered in relation to human behaviour. It does not matter which century it was as far as I am concerned. In my amendment I tried to be as fair as I can. I want to insert "not including a person who is or who has been involved on or in assisting the management of an institution likely to be investigated by the Commission or a similar institution wherever situate, or who might be likely to be liable to give evidence to the Commission". That was an attempt to be even-handed. What I had in mind was — and it could easily arise — that a person who was abused should not be on the commission. That would be only fair. Equally, anybody who was involved in the administration of an institution or who has an ethos of justifying actions, or who is involved in reviewing or advising and so on should not be on the commission. To be even-handed is to exclude both. I wish the commission luck but, in order to encourage maximum confidence and the maximum number of appearances before it, we should exclude from its membership people who might be even tangentially associated with either side of the presentations to be made. That is the purpose of the amendment .
I appreciate the points made by the Deputies. The Government has every confidence in the present commission. Judge Laffoy, who is Chair of the commission, also has every confidence in the membership as currently constituted. These members came with very strong recommendations that they could be particularly helpful. In the view of the Judge and of my Department, the work that has been done to date has been excellent and very well directed in every possible way. If Deputies have evidence against any existing member, they should bring it forward so that it can be considered. However, short of anything of substance, I do not propose to accept the amendments.
I have no evidence of any sort against any member of the commission. I am sure the Government has consulted widely and has selected the members carefully. Notwithstanding that, it seems that there is a considerable body of people for whom this commission is being established who feel otherwise. Perhaps Deputy Higgins's amendment is much better than mine in that it is specific. I worry that the commission we establish will get off on the wrong foot with some of those whose cases it is to hear. That presents a difficult dilemma for Government and one it must seek to resolve, but perhaps not by way of an amendment from Deputy Higgins or myself. The Government will have to convince people on the selection it has made. It is important that it does that. I have no evidence. It is not ideal to amend the legislation as a way of doing this. There is an important concern which the Government will have to resolve outside of amendments to the Bill. Bearing in mind what the Minister has said I am happy to withdraw my amendment.
Is the Deputy withdrawing amendment No. 37?
I will wait until I hear Deputy Higgins.
I wish to make it clear that noboby is making an allegation against anybody. The issue of providing evidence and proof for it does not arise. I drafted the amendment in a general way which would handle both sides of appearance, that is, victims and those who might have been involved in any way in management or supervision in institutions of the kind likely to come under review. I did so only on the basis of securing the maximum distance between those on the commission and any sets of practices. What I have in mind — and again it is not making any allegation — is that, whether we like it or not, what is going to be investigated in Ireland has parallels in other countries. That arose on Second Stage. It is all wrong. Some countries have approached this issue later than others and in different ways. One thing that comes out of it is that association with an institution in a practical way, be in terms of administration, advice or policy, inexorably draws the person into participating in the ethos of these institutions which got away with a defensive stance for a long time. They will speak for themselves. That is fair and natural justice requires that. We will try to facilitate that.
Lest the wrong impression would be given, they certainly will not be involved provided the institutions——
It is best to clarify by reading my amendment which states:
In page 7, subsection (2), line 44, after "persons" to insert "(not including a person who is or has been involved on or in assisting the management of an institution likely to be investigated by the Commission or a similar institution wherever situate, or who might be likely to be liable to give evidence to the Commission)".
I am as willing as anybody to make an exercise in trust in the commission. The purpose of tabling the amendment was to establish the distances on each side. I emphasise yet again that I am making no allegation whatsoever about anybody or anything. I merely wish to minimise whatever hesitance there may be in relation to coming before the commission. If the amendment does not cause a difficulty for anybody the easiest way to dispose of it is to accept it.
I take it that the Deputy's amendment means a person assisting the management of an institution likely to be investigated by the commission. There is no question of anybody in an institution likely to be investigated or a similar institution wherever situate being accepted. Wherever situate means outside the country. Does the Deputy mean an institution similarly likely to be investigated or any institution?
Perhaps the Minister would like me to improve on the wording between now and Report Stage.
The Deputy can have a look at it.
Perhaps the Minister would have a look at it also on the basis of coming back to it on Report Stage.
How stands the amendment?
I intend to withdraw the amendment but regardless, of what wording is found for Report Stage, there is an issue that needs to be resolved by the Government.
The concept that Deputies Bruton and Higgins are trying to convey is a good one. The difficulty is how to make it clear in an amendment. When it comes to defining an institution, even secondary schools could be defined as institutions of the State. If one were to exclude those who may have been in boarding schools, which may well come under investigation by the commission, one would exclude many. The whole concept of agreement between those who will give evidence and the members of the commission is a good one. If the Minister can give a commitment that that sentiment would be conveyed to the commission it might be adequate. It is important to have the confidence of those who will appear.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
Section 6 agreed to.
SECTION 7.
I move amendment No. 39:
In page 8, subsection (3), line 7, after "public" to insert "bearing in mind the desirability of certain matters being heard in public, in particular those relating to the State and to the regulatory regime".
This amendment relates to the provision whereby the commission may, if it considers it appropriate, meet otherwise than in public.
I share the Deputy's concern that the commission should conduct its hearings, as far as practicable, in public. I am satisfied that the commission will do so. There may, however, be merit in inserting an appropriate provision into the Bill to highlight this. I shall propose an appropriate amendment on Report Stage.
On that basis I propose to withdraw the amendment. There are many issues which will not involve individual institutions or individuals but will refer to the broad regulatory regime in place and operated by the State. Those matters should be heard in public.
Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."
How many members will form the commission? The Bill does not specify the number who will be ordinary members of the commission. Subsection (5) reads:
The Commission may act notwithstanding one or more vacancies among its members.
What number will constitute a quorum for the commission to hear evidence? If a substantial number of the members are absent, what number will constitute a quorum? To what extent can they be seen to have been involved in decision making and hearing the evidence in full? I can understand that from time to time members may be unable to attend. Will the Minister clarify the number of members who will form the commission and what will constitute a quorum?
At present the commission is made up of the chair plus two. The intention is that the statutory commission will have three plus two to three, that is a total of five or six, to meet the request of the commission.
To return to another matter in section 7, there is no point in extending it because we had a discussion on amendments that have been disposed of in relation to the record which shall be kept. I have a conservative view on this matter which is that, in relation to challenges to the work of the committees, the commission itself or in relation to any text, on balance it is better to have a full record available. I know the arguments that were put forward against that, and I do not think we resolved them, but I would like my point noted. I retain the view that however difficult it might be to achieve, it would have been better.
Question put and agreed to.
Section 8 agreed to.
SECTION 9.
Amendment No. 41 is related to amendment No. 40 and they may be discussed together by agreement.
I move amendment No. 40:
In page 8, lines 36 to 43, to delete subsection (2) and substitute the following:
"(2) The staff of the Commission shall not include the staff of any organ of State being an organ likely to be investigated by the Commission.".
I preface my remarks by saying that I am not reflecting on any individual or group of individuals, alive, dead, serving, retired or whatever. I was very moved by the frankness of the Minister's predecessor, Deputy Martin coming to the Dáil and being pressed by us in relation to, for example, the Kennedy committee's report. He was able to tell us that files were missing, some of which were later recovered. It became clear, on pressing the Minister, that it was unclear — I want to be fair — as to the type of record it would have been appropriate to keep, what was and was not an exploratory visit or an investigation. I think of references to Daingean, in particular, and children being flogged at midnight.
The point is that the exchange between the two most senior civil servants of the time could be construed only as horror at any of this information getting out and that it would be upsetting for the State. That led me to think about the relationship of people on the commission to their home Departments. I do not have the Dáil statement in front of me but it refers to one secretary of a Department writing to another secretary and which could, colloquially, go something like this: "My man has come across terrible stuff. We will be able, possibly, to keep the lid on it for a while but if it got out, there would be holy war." That would be a popular version, so to speak, of what the Minister said. That being the case, it would be better if the staff of the commission did not come from Departments that are likely to have people answering questions before the commission. That is in everyone's interest.
I am in admiration, particularly as a former Minister, of the professionalism, integrity and dedication to the constitutional practice by civil servants but it would only create problems, if a Department comes under investigation, to have people from the Department staffing the commission. I am not suggesting an inability of people to distance themselves from the departmental view; it is the perception of the distance, as well as everything else. If I make the case, as I have just done, in relation to the membership of the commission, it would be logical for me to make the same case in relation to the staffing of the commission and hence my amendment states that the staff of the commission shall not include the staff of any organ of State being an organ likely to be investigated by the commission.
I fully support Deputy Higgins's amendment. My amendment sought to achieve the same objective. I reiterate the point Deputy Higgins made. This amendment is not intended to cast any aspersions on the staff of the Departments of Education and Science or Health and Children. It is to protect the Department and the staff from any suggestion that the procedures were not fair. After all, we know from the book Suffer the Little Children that the Department took no action on reports of criminal negligence that were brought to its attention. It repeatedly insisted on institutionalisation rather than boarding out so that the Minister would not get embroiled in inquiries if that went badly. We know also that the Department rejected repeatedly the notion of proposed visiting committees, which it viewed as a grave nuisance.
The Department will undoubtedly be in the dock on these issues and it will not be good for anyone if there is a suggestion that there is a conflict of interest in regard to some of the people working in the commission because they are employed by a body under investigation. We would not have put people from the beef industry on the beef tribunal, or indeed people from the Department of Agriculture, Food and Rural Development. It would not have been thought of and I cannot understand the reason, in this case, we are even considering officials from the Department of Education and Science or anybody that was involved in supervision, which I would take to include the Department of Health. That is entirely wrong, and that is not to criticise anyone.
The Deputy should not get over-excited about this because marvellous work has been done to date. An excellent presentation was made to us and the people who worked with the commission included a principal officer, an assistant principal officer, an executive officer and a clerical officer — public servants doing their public service job as they are expected to do, and not being influenced by anybody. We have many examples of that in present day public administration. If we cannot accept that our public servants will perform as people of integrity——
Public servants from other Departments.
These people are public servants from the Department of Education and Science who have done all the work to date, who have the expertise and who prepared all the information the previous Minister gave to the committee, and we are now questioning their integrity in doing that.
We are if we are talking about not having them on the commission.
On a point of order, Chairman——
I will hear Deputy Bruton on a point of order.
The Minister is making allegations about the motivation of people here that are totally unfounded, and he should withdraw them. We are not in any inferring that these people would act wrongly. It is a matter of conflict of interest and there is much precedent on how to avoid conflicts of interest. Members of the Oireachtas are not allowed to be members of State boards because of fear of conflicts of interest. It is a real issue. There are provisions in public ethics regulations which insist that conflicts of interest be avoided, so the Minister may withdraw his suggestion.
I join with Deputy Bruton on that point. I was at pains to point out that we were certainly not questioning the personnel. I said that everyone would gain from the elimination of a perception that people from a Department which was being investigated would be working on the commission. My admiration for the people who prepared the documentation so far is no less than the Minister's but it is very unfair to suggest that the purpose of amendments Nos. 40 and 41 is to question integrity.
I will put the matter bluntly. Deputy Bruton has given a list of a previous set of events. They are facts. They are not the responsibility of staff who are now working on this issue in the Department of Education and Science. We are not questioning anybody's integrity. It would be perceived better if the commission was staffed by a Department that is not being investigated. It was unworthy of the Minister to say that view questions the integrity of the staff. It was unfortunate he used the word "integrity".
I will allow the Minister intervene to clarify his remarks.
I accept that neither of the two Deputies was making an allegation against any public servant, but they referred to a perception, to which I object. I do not believe there is such a perception and I would object to the thinking behind such a perception. If public servants are doing a first-class job, they should be allowed to get on with their work. There is no indication of any wrongdoing of any sort on their part.
Allow the Minister to continue.
Has the Minister read the submissions presented in respect of both sides of the argument?
The Deputies said what is at issue is not a question of fact but a perception. I do not mind as long as first-class public servants are doing the job, and the evidence is that they are doing a first-class job. I have no problem with them doing the work. It may be necessary to involve more people in the work.
The Government, the State and the nation are accused in this area because of sins committed in the past. The Taoiseach apologised on behalf of the State for what happened. Will we have to ask people from New Zealand or some other country to record these events?
I do not know whether the Minister is deliberately seeking to misconstrue what is being said to defend something that is indefensible. We received submissions from various religious institutions involved in the running of the institutions of care who pointed out the anomalous situation regarding the staffing of the commission. We have also received submissions from the survivors of child abuse pointing to the anomalous situation. If the Minister can say there is no perception that this proposal is anything but kosher, he has not read the briefs he has received. There is a clear perception on both sides that this is not a normal or proper arrangement.
Deputy Higgins and I have been Ministers and we are aware of the integrity of public servants, but it is a different issue when the Minister's Department is on trial for something that occurred in the past and it may still be in the dock for issues that are happening today. It would be wrong for the commission investigating those issues to rely on staff from that Department. It is a matter of principle — the principle of avoiding conflicts of interest. As Members of the Oireachtas, we have to publish and declare our interests when there are issues that could be perceived as conflicts of interest. That is an important issue of ethics in public business. It would be wrong for us to depart from it.
I accept that it would be convenient for the Minister to continue to reply on staff who have a track record of working in this area and who have established a detailed knowledge of it. I realise it would be an inconvenience for the Minister to rely on new staff to do this work, but it is important that should be done to protect the integrity of the process.
The Minister asked where he would go to get staff. In terms of the documentation that is being prepared for the commission and the way the briefings have been conducted, I have found them above the level of ordinary competence, generous and impressive. It is with the greatest reluctance that I must insist it is in everybody's interest that there should be a perception that the process should allow the Department of Education and Science to come before the commission the same as anyone else concerned. If the Minister wants to go down that road, he might like to give us his opinion on what was stated to the Dáil about the correspondence between the two most senior people of the time. I can only give him mine and it led to my tabling this amendment. The Department of Justice, Equality and Law Reform might come before the Commission and that would be only right. If two Departments of State are involved, they will be blamed for things for which they were not responsible as well as for allegations that may stick. It would be in everybody's interest if the commission was independently staffed by people who are not responsible for any allegations that may be made now or in the future.
There is nothing sinister about this amendment. It seeks to establish an arm's length principle between people who are likely to appear before the commission and the staff of the commission. I do not know how the Minister could read any of the preparatory work for this commission and not recognise there are specific allegations made against Departments of State, two in particular.
I want to make clear to Deputy Bruton that the use of staff who have a knowledge in this area is convenient for the commission — it is not convenient for me. The use of that staff does not matter to me personally, but I strongly belief in the integrity of the staff who are the subject of questioning on the grounds of a perception that their use might damage the integrity of the process.
On a point of order, the Minister insists on repeating the point about the integrity of the staff. The Chair must make a ruling on this issue.
Let the Minister conclude his remarks on this point.
On a point of order, I ask the Chair to make a ruling on this issue. The Minister continually presents the case as if we are questioning the integrity of civil servants. That is not so. I ask the Chair to make a ruling on that point because what the Minister said is an abuse of privilege.
The Deputy said a moment ago, and I wrote it down, that there is a perception the staff are not kosher.
This is an issue of conflict of interest. We cannot have people even potentially being the judge in their own case.
They will not play the role of a judge.
Given that specific allegations have been made against the Department, it would be wrong for staff working on assembling and presenting evidence to be members of the body that is so accused. If the Minister cannot understand that, I cannot make it any clearer.
The amendments have clear implications for the timescale in which the commission can begin its operations and its efficiency and effectiveness once it begins its work. The Deputies have expressed concern about possible conflicts of interest because seconded staff belong to Departments which are under investigation. Such conflicts of interest do not arise. The staff concerned will be professional administrators. They will be purely administrative staff who will not have a role in making any evaluation of evidence or reaching any conclusions. Even in the case of inquiry officers appointed under section 23, these will do no more than record allegations and the response to them by people against whom they are made. These documents will be given directly to the commission, which will then carry out the inquiry.
The commission or its legal representatives will conduct the examination of the witnesses. The commission will weight up the evidence, reach conclusions and draft its report. It is inconceivable that members of the commission would allow themselves to be influenced in such matters by administrative staff. If there is a genuine concern about conflicts of interest in seconding staff as proposed, then these amendments themselves would not go far enough. The work of the commission has potential implications for the State and its administrative apparatus as a whole. It would therefore not be appropriate that any public employees be involved in the work of the commission.
This begs the question as to the implication for the commission. In the Government Departments concerned there is a pool of highly competent, well trained staff available who will be very familiar with the kind of administrative duties involved. It is difficult to see how the commission could recruit, and in many cases train, sufficient staff with the requisite skills within any reasonable timescale. I am satisfied that the potential for conflicts of interest is very remote and, in so far as it might possibly exist, I am satisfied that the commission will be in a position to prevent it. The damage that would be done to the commission by these amendments would far outweigh any possible benefit which could be gained.
That last rather more extensive statement by the Minister is more moderate and more accurate in relation to the presentation of a case against the amendment. It calls them and us to judge where the benefit and demerit of the amendment falls. Having heard all that I have to press the amendment.
Amendment put.
The Select Committee divided: Tá, 4; Nil, 8.
Tá
- Bruton, Richard,
- Hayes, Brian,
- Higgins, Michael D.
- McGrath, Paul.
Níl
- Ahern, Noel,
- Carey, Pat,
- Ellis, John,
- Keaveney, Cecilia,
- Kitt, Micheál P.
- Moloney, John,
- Wade, Eddie,
- Woods, Michael.
Amendment No. 41 seeks to delete text in respect of which a decision has been made and it cannot be moved.
Amendment No. 41 not moved.
Sections 9 and 10 agreed to.
SECTION 11.
I move amendment No. 42:
In page 9, between lines 37 and 38, to insert the following subsection:
"(6)(a) A Committee may, if and whenever the Chairperson so determines, act in divisions each of which shall consist of such members of that Committee as the Chairperson may determine.
(b) There shall be a chairperson of a division of a Committee who shall be such a member of the division as the Chairperson may determine.
(c) A division of a Committee shall perform, in relation to such matters as the Chairperson may determine, such functions of the committee as may be so determined and shall prepare and furnish to the Committee a report in writing of the results of such performance.
(d) A division of a Committee and its chairperson shall have, for the purposes of the performance of the functions of the division, the powers of the Committee and its chairperson, respectively.”.
The purpose of this amendment is to allow the committees to operate in divisions. If each committee had three members, this is would allow them to sit in divisions of two. This would give additional flexibility to the committee and would help in avoiding a situation where members of a committee were exposed over an excessively lengthy period to the onerous task of dealing with sometimes harrowing personal accounts of victims of abuse. It is a convenience
One of the points made in the work of Justice Laffoy was the idea of a Chinese wall between the two committees. Does that mean the commission cannot meet as a group, except at the end when all the work is completed and the two reports are presented?
That is probably true, but it would in effect be up to the commission and the judge.
Amendment agreed to.
Section 11, as amended, agreed to.
SECTION 12.
Amendment No. 43 has already been discussed with amendment No. 19.
I move amendment No. 43:
In page 10, subsection (1)(d), line 11, to delete “and” and substitute the following:
"(iii) the State through the legislative framework; the system of Justice; the systems for funding, regulation, and inspection of institutions; the systems of investigation and responding to complaints, and".
I indicated that I would resubmit this amendment on Report Stage. The Minister accepted amendment No. 19 in principle so I will withdraw the amendment at this stage.
Amendment, by leave, withdrawn.
Sections 12 and 13 agreed to.
SECTION 14.
Amendment No. 44 is in the name of Deputy Higgins and amendments Nos. 46, 55 and 56 are cognate and they may be taken together. Is that agreed? Agreed.
I move amendment No. 44:
In page 11, subsection (1)(d), line 13, after “oath” to insert “or affirmation”.
The oaths Act of 1888 allows for an affirmation but it applies in the terms of the Act to proceedings. Having read the Bill, it was unclear to me whether the witnesses before the commission could benefit from it. I suggest we make the amendment to ensure that.
I accept these amendments in principle, subject to the advice of the parliamentary draftsman. I will come back to them on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 45:
In page 11, subsection (4), between the lines 33 and 34, to insert the following:
"(a) obstructs or hinders the commission in its work,”.
I noted that no offence of obstructing or hindering the commission was listed. What is the reason for that absence? I suspect it may have been picked up elsewhere in the Bill.
Section 29, which makes it an offence to obstruct or hinder the commission or a committee in the performance of its functions, covers that point.
Amendment, by leave, withdrawn.
Amendment No. 46 not moved.
Sections 14 and 15 agreed to.
SECTION 16.
I move amendment No. 47:
In page 13, subsection (2)(a), line 5, after “abuse” to insert “or any institutions”.
As Deputies will be aware, the purpose of the confidential committee is to hear allegations of abuse in complete confidence. There will be no opportunity for cross examination by persons accused or for corroboration of evidence. In the circumstances, the Bill already places significant restrictions on what can be contained in the report of the committee made to the commission as a whole. The report, as provided at present, cannot name individuals or make a finding in respect of a specific allegation. I propose to add to these restrictions a provision which will also restrict the naming of institutions. It is easy to foresee that if the committee were to name an institution, then rules of fairness and due process would be breached in view of the absence of any opportunity to test the allegations.
Amendment agreed to.
Section 16, as amended, agreed to.
Section 17 agreed to.
SECTION 18.
I move amendment No. 48:
In page 13, subsection (1)(a), line 34, after “Committee” to insert “(including the legal representative of any such person)”.
I have no difficulty with the amendment if it is necessary. My view is that it is not necessary but I will seek the advice of the Attorney General and return to the issue on Report Stage.
That is acceptable. The advice I got was that the privilege involved needed to be specified. I am happy to return to it on Report Stage and will resubmit the amendment, if necessary.
Amendment, by leave, withdrawn.
Section 18 agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill."
Is there an issue of treating different sides differently? One side can present evidence and have it disregarded but the other side is obliged to answer all questions and it would be an offence if they failed to answer. Is it open to challenge on the grounds that it is treating different people differently?
The section provides that a person who is alleging abuse may decide to stop giving evidence to a committee, decide not to give any evidence to any committee or decide to change committees. It must be accepted that the giving of evidence in relation to abuse is a very traumatic experience for most people who have suffered it. Witnesses will, at the outset, be given an opportunity to choose between the wholly therapeutic path of the confidential committee or the more investigative path of the investigation committee. Having made a choice, it is reasonable that a person be allowed to change his or her mind. This section provides for that. In doing so, however, it must provide safeguards. In particular, the strict separation between the two committees must not be breached. Accordingly, if a person changes committee then the evidence given in the former committee will be disregarded by the commission. The only exception to this is if a person has potentially perjured himself or herself.
I would question whether there is a legal frailty in having one rule for one side and another for the other side. If the Minister is happy that it is not a problem, then——
I am advised that it is not.
Question put and agreed to.
SECTION 20.
Amendments Nos. 49 and 50 are out of order as they involve a potential charge on the Revenue. Amendments Nos. 51 and 52 are also out of order.
Amendments Nos. 49 to 52, inclusive, not moved.
I move amendment No. 53:
In page 14, subsection (4), line 35, after "by" to insert "agreement of the parties or".
This is to allow for the option of agreement, which is normal.
I accept the amendment in principle, but will ask the parliamentary draftsman to consider the precise wording and return to the matter on Report Stage.
Amendment, by leave, withdrawn.
Question proposed: "That section 20 stand part of the Bill."
I am disappointed my amendments were ruled out of order. They sought to pin down precisely what costs would be covered on the part of those who attend and would have specifically sought to grant legal representation to persons who allege abuse throughout the entire public proceedings. Ms Justice Laffoy clearly indicated that legal representation was involved in taking the route we are agreed on. On page 29 of her submission she states: "It must be pointed that legal representation and its associated costs may arise in connection with the process describe in paragraph (b) above.”
The Minister has published witness expenses, which deals with the issue of travel expenses but not with the issue of legal representation. While I appreciate that we want to procedures to be informal, especially in the case of the confidential committee, which should be entirely informal, it is clear that where we find evidence and subject people to cross examination in the investigative committee, there should be proper legal representation. The commission went on to recommend that this should be handled independently of the commission and by an outside body which Ms Justice Laffoy suggested should be either the Attorney General or some other body.
The Minister has made no provision for legal costs and my understanding from briefings is that the only intention is to provide legal representation during the submission of evidence. There is no ongoing legal representation on behalf of survivors. Equally, there should be proper supports, as provided for in amendment No. 50 in my name, which calls for psychological counselling or other supports to be made available to people who come before the commission. While the Minster is making separate provision for that, the issue of legal representation should be properly dealt with. It has not been to date.
There is provision for legal representation, although the Deputy appears to be calling for a separate legal team arrangement, apart from individual representation. We have provided a draft scheme, which would have to be approved by the commission when it is formed. There is a scheme for legal fees as well as costs. The fees for legal representatives would be paid for by those who cannot afford their own legal representation. I take it the Deputy is referring to an arrangement whereby the representatives might have continuing representation of their global situation.
This matter should be reflected on. It is very important that the principle of the parity of legal representation be established, where those appearing at one event or more continuously should not be at a perceived disadvantage in terms of the State's legal representation of the State's case. The other element refers to such costs as may arise in relation to attendance, some of which are dealt with. There are also other costs to be considered. Perhaps we could give further thought to this.
I will look at the Deputy's point about continuing representation.
The people concerned will only appear at one stage and decisions will not be made on individual instances where evidence is presented. It is important, therefore, that they have continuing representation. I agree with the section, subject to the Minister revisiting the points raised for Report Stage.
Question put and agreed to.
We have reached the time agreed by the committee for the adjournment of the meeting.
We could finish our deliberations on the Bill within ten minutes.
Is it agreed to continue to the end? Agreed.
SECTION 21.
I move amendment No. 54:
In page 15, subsection (2), lines 14 and 15, to delete ", or in any civil proceedings in a court or other tribunal".
I understand that the evidence in normal tribunals is not used in criminal proceedings but is used in civil proceedings. In this instance the Bill provides that the evidence will not be used in either situation. Why is that the case?
The provisions of the Bill are aimed at encouraging maximum co-operation with the commission's investigative functions. They provide the balance between ensuring that the commission can receive the information it needs and the constitutional rights of others. If the proposed amendment was accepted it would endanger that co-operation and disturb the balance which has been achieved.
I will reflect on the matter between now and Report Stage and will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 21 agreed to.
Amendments Nos. 55 and 56 not moved.
Sections 22 to 24, inclusive, agreed to.
SECTION 25.
I move amendment No. 57:
In page 17, subsection (5), line 25, after "may" to insert ", with the concurrence of the Minister for Justice, Equality and Law Reform,".
I accept this amendment in principle but I wish to seek the advice of the Attorney General and return to it on Report Stage.
Amendment, by leave, withdrawn.
Section 25 agreed to.
SECTION 26.
Amendment No. 60 is related to amendment No. 58 and both may be taken together by agreement.
I move amendment No. 58:
In page 17, subsection (2), line 37, after "section" to insert "does not apply to information protected by legal professional privilege but otherwise".
While it might be useful to discover every single document in every single legal person's office, it might be at the price of a loss in the relationship between clients and their legal representation. The provision might facilitate getting at the truth, but it appears to be a heavy instrument.
I am uneasy about the implications of these amendments because they appear to provide avenues for people to escape their obligations to the commission.
I am sure the Minister accepts that is not the intention of the amendments.
I will reflect on the matter between now and Report Stage and in the meantime will withdraw the amendment.
Amendment, by leave, withdrawn.
Section 26 agreed to.
Sections 27 to 29, inclusive, agreed to.
SECTION 30.
I move amendment No. 59:
In page 19, subsection (1), line 16, to delete "A" and substitute "From the date of publication of this Bill on 2 February 2000, a".
This arises because of section 9(4), page 14, of Ms Justice Laffoy's report on the terms of reference, where she states:
The legislation should provide that as and from the date of publication of the Bill providing for the establishment of the commission, any person having in their possession, custody or control any documents, data or material relevant to the function of the commission shall preserve the said documents, data and material until the publication of the commission's final report.
This section appears to apply to such material only from the enactment of the legislation.
The purpose of the section is to prevent the deliberate destruction of records which may be of help to the commission. I appreciate the concern of Deputy Bruton that documents may be destroyed after the publication of the Bill, but before enactment. However, I have been advised by the Attorney General that the proposed amendment would offend against Article 15.5 of the Constitution which prohibits retroactive penal legislation. As the destruction of documents was not an offence at the date of publication, it cannot now, several weeks later, be made one at that date. The advice on drafting is that we cannot do it.
I cannot but accept the Attorney General's ruling on that point.
Amendment, by leave, withdrawn.
I move amendment No. 60:
In page 19, subsection (1), line 16, after "control" to insert "(otherwise than in circumstances where legal professional privilege attaches to the document or information concerned)".
I will come back to this amendment.
Amendment, by leave, withdrawn.
Section 30 agreed to.
Sections 31 to 33, inclusive, agreed to.
SECTION 34.
Question proposed: "That section 34 stand part of the Bill."
What request under the Freedom of Information Act, 1997, is being refused under the provisions of this Bill, where it states "reasonably expected to prejudice the effectiveness of the performance of its functions"? What exactly is being provided for there?
Section 34 restricts the application of the Freedom of Information Act, 1997, as regards records held by public bodies where access could prejudice the effectiveness of the commission. In reaching an opinion on the extent to which prejudice could be caused or where the balance of public interest lay, the public body head must consult with the chairperson of the commission. Where records of the confidential committee are transferred to a public body for safekeeping on the dissolution of the commission, access shall not be given to them under the Act. This is in keeping with the seal of confidentiality around this committee and its activities.
Question put and agreed to.
Sections 35 to 37, inclusive, agreed to.
TITLE.
I move amendment No. 61:
In page 3, line 7, after "AS" to insert "AN COIMISIÚN CHUN DROCHÚSÁID LEANAÍ A FHIOSRÚ, OR, IN THE ENGLISH LANGUAGE,".
Amendment agreed to.
Amendment No. 62 is out of order as it involves a charge on the Revenue.
Amendment No. 62 not moved.
Title, as amended, agreed to.
That concludes consideration of the Commission to Inquire into Child Abuse Bill, 2000. I thank the Minister and the Members for their attendance.
