Vol. 4 No. 6
I welcome the Minister for Education and Science, Deputy Woods, and his officials. We are here to commence our consideration of the Residential Institutions Redress Bill, 2001. I suggest we continue our consideration of the Bill until 4 p.m. with a break for lunch from 1 p.m. to 2 p.m. If we have not concluded our consideration of the Bill by that time, we can reconvene at a later date. Is that agreed? Agreed.
SECTION 1.
Amendments Nos. 1 to 3, inclusive, in the name of Deputy Shortall are not in order.
Chairman, may I make an observation? We have been confronted at extremely short notice by a considerable number of substantial amendments in the Minister's name. These amendments were only made available to us this morning. It is not fair that these arrived so late. It does not facilitate a meaningful and constructive debate. I appreciate that the Minister and his officials have been working on issues which are of concern to members and which have been raised in consultation with the Minister and his officials, but it is unsatisfactory to get notice of additional ministerial amendments this morning while at the same time a substantial number of our amendments have been ruled out of order.
I understood the amendments were available yesterday afternoon. The question of amendments being ruled out of order is not a matter for me and it is not a matter of time either. It is a question of whether they are either in or out of order. The issue of time would not affect them.
I must object to the decision to rule the first three amendments out of order. The Opposition is in an exceptionally difficult position in relation to amending legislation because of the rule that any amendment which involves a charge on the Exchequer is out of order. I question that rule because it disempowers Opposition spokespersons from making any changes of any consequence to legislation. There is a standard route to get around this problem, which is used on a regular basis — certainly in the case of social welfare legislation — as the Minister is well aware. Each year on the Social Welfare Bill motions seeking a report from the Minister are allowed. I would like to test the decision taken in regard to these amendments.
The practice has always been that where there is a potential charge on the Exchequer, amendments are not allowed. We should not discuss them.
Would the preparation of a report be a charge on the Exchequer?
No, the three amendments would require the Minister to prepare reports on matters which would otherwise involve a potential charge on the Exchequer. The practice is that the reporting mechanism does not bring such amendments into order.
The preparation of a report does not involve a charge on the Exchequer. The Minister is familiar with this mechanism as it is used in regard to the debate on the Social Welfare Bill.
It is not my function to rule on amendments, but the Deputy has sought a report on the extension of the provisions to persons who are students at an educational institution. If the report were to provide for such an extension, more funds would be required. This ruling applies to all legislation. This issue, which would need to be taken up on a wider basis, would dramatically change the procedures of the House. I work in accordance with the Standing Orders and procedures that apply to legislation.
There is a vote in the House. I propose to suspend the meeting.
I stated before the Dáil division that I had to rule amendments Nos. 1 to 3, inclusive, in the name of Deputy Shortall out of order for which I can give the reasons. Amendment No. 1 involves a potential charge on the Revenue as it seeks to extend the benefits of the Bill to those who attended without being resident in institutions not included in the scope of the Bill. Amendment No. 2 involves a potential charge on the Revenue as it seeks to extend the Bill to persons who may have been adults at the time the alleged abuse took place and involves an institution of the type not covered by the definition of "institution" in the Bill. Amendment No. 3 involves a potential charge on the Revenue as it involves the establishment of an educational trust fund. As the purpose of the Bill is to make financial rewards to individuals, the establishment of a trust fund to be applied in a specified way would also be outside the scope of the Bill as read a Second Time.
I am very disappointed with the ruling the Chairman has given. It was to avoid this difficulty concerning a charge on the Exchequer that I used the mechanism of requesting the Minister to prepare a report. There is not much point discussing the Bill on Committee Stage if the Opposition has no power whatsoever to make amendments of any consequence. It is undemocratic to rule Opposition amendments out of order on those grounds.
The last sentence of the note regarding the amendments being out of order states: "Amendment No. 3 is also out of order since it is outside the scope of the Bill as read a Second Time." Can you explain the basis for this ruling?
First, it involves the education trust fund and, second, it is outside the scope of the Bill.
Are you saying we have no power to widen the scope of a Bill?
When an amendment involves a potential charge on the Revenue, it cannot be ruled in order.
An annual report does not involve a charge on the Revenue.
That is your view. The view of the Bills office is that it extends the benefits of the Bill. A report would involve a potential charge on the Revenue by extending the benefits of the Bill to people in institutions without being resident in the institution and people who may have been adult at the time the alleged abuse took place.
I have no choice but to oppose any section of the Bill which, in my view, is too narrow in its scope and I will do that.
I move amendment No. 4:
In page 3, subsection (1), between lines 32 and 33, to insert the following:
" 'Act of 2000' means the Commission to Inquire into Child Abuse Act, 2000;".
This is a technical amendment required because of the later reference to the investigation committee of the Commission to Inquire into Child Abuse.
Amendments Nos. 9, 11 and 94 are consequential on amendment No. 5 and all may be discussed together.
I move amendment No. 5:
In page 4, subsection (1), to delete lines 10 to 13 and substitute the following:
" 'institution' means an institution that is specified in the Schedule;".
These are largely technical amendments. They in no way alter the effect of the Bill as published. What the amendments achieve is a greater level of certainty as to the application of the Bill. I propose the inclusion of a Schedule of the institutions covered by the Bill to provide maximum certainty with regard to its application. This is something Deputies on the other side were keen to have and it improved the Bill by putting the list in the Bill itself.
Given the lapse of time since many of the institutions operated from which claimants can potentially come and a risk that because of that lapse and inadequate record keeping an institution may be overlooked, I propose a capacity to extend the list of institutions. This would be subject to supervision by the Houses of the Oireachtas. This will give greater flexibility and ensure that the redress board, with the consent of the Minister and the Oireachtas, can deal with the merits of a variety of events, possibly not in our contemplation at present but which may come to light in the future.
Some of the amendments Deputy Shortall and I tabled relate to the amendments proposed by the Minister. At the heart of the Bill is the question of who qualifies. The capacity to add to the list of institutions deals with that question.
Many people are concerned that the Bill is not sufficiently wide in scope. There is considerable concern among the victims from residential institutions that nothing should delay their cases being dealt with by the board. Deputy Coveney and I tabled an amendment on this issue, which has been ruled out of order. Our amendment proposed that the board, in carrying out its function, would first deal with victims in residential settings and then with victims in other settings.
In his speech on Second Stage, the Minister made sympathetic noises about the Magdalen laundries. My amendment sought to include residents of Magdalen laundries, persons in foster care where the State had a clear responsibility and victims of sexual abuse in day schools within the scope of the Bill. Due to the ambivalent approach to physical abuse in schools in previous decades, we proposed that the Bill at least deal with victims of sexual abuse in day schools.
The Minister's amendment proposes the publication of a list of institutions which qualify and gives him the capacity to add to that Schedule. Is the Minister merely making sympathetic noises? What is his thinking with regard to people who were placed in Magdalen laundries after being in industrial schools and who had a legal right to leave the laundries, but who were not in a position to do so? These people, effectively, were prisoners in the laundries. Will they be included in the Bill? Will children who were abused in foster care, where the State had a clear responsibility, have a right to benefit under the terms of the Bill? Will children who were sexually abused in day schools, which were owned by the State, where the staff were paid by the State and where the State had a supervisory function, have a right to benefit from the Bill, from the changes being made to the Bill by the Minister and from the capacity he is giving himself to add to the Schedule? Will children who were in orthopaedic hospitals be included? The question of who is to benefit from the terms of the Bill is at the heart of the legislation. The Minister proposes to give himself an entitlement to add seriatim in the future to the list of qualifying institutions. The Minister’s thinking must be clarified.
The Minister's amendments are very disappointing. He has paid no attention to points raised by Opposition Members and by members of his own party during the debate on Second Stage or to points raised during the committee's two days of hearings with victims' groups. Members have spoken at length about the need to widen the scope of the Bill. In announcing the compensation scheme, the Minister spoke about its benefit in saving victims the trauma, delay and expense of taking actions in the courts to receive compensation. That was the thinking behind the Bill.
Why do these principles not apply to those who were in day schools? The Minister is familiar with a number of cases of children in day schools which were subject to inspection by the Minister's Department and in which the salaries were paid by the Department. The Minister of the day had regulatory responsibility for these schools in which a number of people were very seriously sexually abused. Is the Minister saying to the people concerned that he will not provide them with an opportunity to seek speedy redress? The arguments he makes in favour of those who were in residential institutions do not apply to this category. He is, therefore, talking about a two tier system. Will he put the people concerned through the trauma, expense and delay of taking individual civil actions? If he intends to do so, he will be compounding the abuse they have suffered. I am extremely disappointed at the lack of sympathetic consideration he has given to them. His backbenchers came in one after the other to speak about the need to extend the Bill to cover this category of victim. It seems he is ignoring all of them.
In his reply on Second Stage the Minister gave every indication that he would consider the points made in this regard. He said he would be anxious to hear them teased out at length on Committee Stage knowing that we would not have an opportunity to do so. He has rubbished the arguments we made, a matter on which we will not have an opportunity to vote, something about which I am disappointed.
We have asked a number of questions about the status of those who were in orthopaedic hospitals, placed there because of their disability and who, if it were not for their disability, would have been in a reformatory or an industrial school. Similarly, these institutions were subject to regulation by the Minister's Department.
The Minister has completely excluded from the Bill those who worked in the Magdalene laundries. It seems he has not given any consideration to including them. Given that he does not intend the Bill to include these categories, will he indicate whether he believes they should have access to any redress? We were told that for legal reasons and for the sake of speed and not wanting to delay the process for those who were in residential homes these categories could not be included. However, there is a mechanism for dealing with the matter. It could be done on a phased basis, as suggested by Deputy Creed. Is that the Minister's intention or is he stringing people along in the hope that at some point in the future he will include them? He has the facility to do so in this legislation. He is providing for additions to the Schedule which he has laid out, yet in other amendments he is restricting the scope of the Bill to those who were detained in institutions under court order. That would not apply to a number of these other categories. I ask the Minister to set out clearly his intention in relation to these other categories who are not currently covered by the Bill. Does he intend to include them at any point? If not, what is the basis for providing a two tier system?
Like previous speakers, I seek clarification on a number of points. Deputy Creed and I have tabled an amendment, which will be ruled out of order, the purpose of which is to try to introduce a phased approach to how redress board will conduct its business. We were conscious of not wanting to delay proceedings or affect the level of redress to which those who suffered as a result of having been in residential institutions are entitled. That is the reason we tabled an amendment to provide that, under the first phase of hearings of the redress board, the victims of residential institutional abuse would be heard and awards made to them before the board would move to the second phase, which we had hoped would deal with victms in non-residential and residential settings not covered in the Bill, such as those on mentioned on the list, to which Deputies Shortall and Creed referred.
I ask the Minister to clarify how he intends to approach this matter? I welcome, in a limited way, that he is introducing a level of flexibility. He is allowing the Minister of the day to widen the scope of the redress board and this legislation at a later date. Does this mean that the redress board can get under way, hear cases and offer redress and that at the same time the Minister can constantly assess how it is proceeding and decide whether to widen its scope to ensure victims from a different background can be catered for, a matter about which I am unclear?
Is the Minister fearful that if he included day pupils or significantly widened the scope of the Bill, as sought by us through a second phase of hearings by the redress board, too many victims would seek redress? If that is his fear, it is not founded on any fact. There are only 1,000 people who were in residential and non-residential institutions, with cases going through the courts at present. We are not talking about thousands and thousands of people. We are going through the detail of getting legislation through that can offer redress to those who have had their lives turned upside down in institutions for which the State had a real responsibility. We should not let this opportunity pass without widening the scope of the Bill to include non-residents. I look forward to the Minister's response.
Deputy Creed proposes that the scope of the Bill should be extended to include those who suffered abuse in foster homes, Magdalene laundries, orthopaedic hospitals and day schools. If children were consigned to a residential home and went from there to an orthopaedic hospital, I want to clarify that they would be covered by the Bill.
In the course of the Second Stage debate the question of the scope of the Bill to deal with abuse that took place outside residential institutions was raised. I said the Bill would deal with a particular situation, abuse in industrial schools, reformatories, orphanages and similar institutions.
Deputy Creed asked what institutions the Bill could be extended to cover. Deputy Coveney asked whether its scope could be widened while the redress board is progressing with its work. The list is set out and the mechanism for extending it is available. This can be done at any time. For instance, if a Minister discovers, through any of the discussions or reports that become available, that there is a case to be answered by an institution that is not included, it can be brought forward. It would be a matter for the Minister to put the matter of the process for doing so before both Houses of the Oireachtas.
This issue was brought graphically to light by the publications, documentaries and accounts of survivors in recent years. They dealt with a particular situation, abuse in schools, reformatories, orphanages and similar institutions. The purpose of this Bill is to deal with situations where children were abused while the State was acting to a very significant degree in loco parentis, in regard to children removed by the State from their parents and placed out of their protection. Deputy Creed’s proposal is that the scope of the Bill be extended to include those who suffered abuse in foster homes, Magdalen laundries, orthopaedic hospitals and day schools.
Because I am not accepting these amendments it should not be taken that I am asserting that abuse did not take place in those locations, or that where it occurred it was somehow less wrong and less damaging than the abuse which this Bill has addressed. It is always wrong, however in the case of the laundries, those concerned were adults and here we are dealing with a measure which addresses the needs of people who were abused as children. In so far as children who were still in the custody of industrial schools were sent to work in laundries and suffered abuse there then the Bill already covers them. With regard to the situation applying to foster children, currently there is no evidence of any significant level of allegation of abuse in such institutions. This raises the question as to whether this Bill should include a solution for which there is not an extensive issue. That said, I want to review the situation further and will come back to that point on Report Stage.
The inclusion of orthopaedic hospitals in the scheme also presents difficulties. In most cases children were placed in the hospitals by parents who continued to have a close involvement with them. As in the case of laundries, however, the Bill provides for the situation where children in institutional care were sent to hospitals and suffered abuse.
In the case of ordinary schools I set out on Second Stage my view of the liabilities of the State and the difference between them and the institutions we concerned with in the Bill. In the case of ordinary schools, children went home to their parents in most cases. If they did not, as in the case of a boarding school, the parents had and were encouraged to have a close involvement in their children's lives. This was a far cry from the regime which obtained in most of the residential institutions. It is also the case that the scheme set out in this Bill is simply not appropriate for abuse situations in ordinary schools, even if the other issues which I outlined did not arise. The Bill deliberately sets a very low proof threshold in regard to claims. It does so because it is widely accepted that the residential institutions, in most cases, fell far below the standards of child care and protection which would have been expected, even at the time the abuse occurred. Therefore it is more likely that an injury which a former resident has today is connected to his or her period in the institution. That is not the case for people who attended ordinary schools.
There is also a practical issue which we should bear in mind if the scope of the Bill is extended to other groups or classes of victims as suggested. I fear the victims of the appalling abuse we are concerned with in the Bill, whose suffering precipitated this redress scheme, would become just a small part of a process which would be destined to last for many years. This is not how we want to bring healing and justice to the victims of institutional abuse. For these reasons I do not agree that we should make such a fundamental change to the Bill.
I see no benefit in laying reports of the kind proposed by Deputy Shortall before the Houses of the Oireachtas. It is not clear what such reports would contain or what their purpose would be. There is, however, a forum which can consider the issues raised by the Deputies, namely, the Commission to Inquire into Child Abuse. The commission will hear accounts of abuse arising in all situations other than family homes. This in itself can be of therapeutic benefit to people who suffered abuse as children in places other than residential institutions. The commission can also make recommendations in regard to action which should be taken to alleviate or otherwise address the effects of abuse on those who suffered it. The commission is independent in the exercise of its functions, so it is not for me to speculate as to what their recommendations may be. In so far as measures can and need to be taken to address the wider issue of the effects of abuse, the Oireachtas has already established a process which can inquire into that.
It is inaccurate to suggest what we are attempting to achieve in this amendment would delay justice and redress for those who are included under the terms of the scheme set out by the Minister. What we suggest in the amendment would be a modus operandi that would allow those currently included by the Minister to be on the first phase while others would be dealt with subsequently.
I wish to clarify the situation regarding orthopaedic hospitals. The Minister said that if somebody went to an orthopaedic hospital from an industrial school they are entitled to compensation under the Bill. I accept that, but is the Minister equally saying that people with disabilities who went from their homes are not entitled to compensation under the Bill? This is a critical issue because the hospitals were under the management of the State. In those circumstances appalling abuse occurred and these people should be included in the terms of reference of the Bill.
This is similar to the case of Magdalen laundries. Some people moved seamlessly from industrial schools to these laundries when they could no longer be legally incarcerated in the industrial schools. They moved without being aware of their legal rights. The Minister can say they were entitled to leave but there are many documented cases of people being returned by the arms of the State, including the Garda, when they made efforts to leave. They were kept there under lock and key and were not entitled to leave. They may have had a legal right but the combined forces of those who were in charge of the laundries and the willing connivance of the State obliged them to stay. People who moved to Magdalen laundries at the behest of industrial schools and who were abused when working there are entitled to compensation. However, will people who were no longer entitled to be kept in industrial schools but were shifted in a seamless movement from an industrial school into a Magdalen laundry not qualify under the terms of this Bill? It would be shameful if this did not include them and recognise the reality of their lives. They were substantially dysfunctional people whom the State failed in terms of education and were used virtually as slave labour in Magdalen laundries. Are they now being excluded by the Minster from benefiting under this legislation? That is unacceptable and the Minister needs to clarify it.
The Minister commented that he is unaware of any significant level of abuse in foster care and is prepared to look at this on Report Stage. Am I correct in understanding the Minister is prepared to consider just the foster care issue on Report Stage or is it intended to address the further issues in respect of Magdalen laundries and orthopaedic hospitals? I have before me a finding of the House of Lords in respect of Lister and others v. Hesley Hall Limited. The case was heard on 3 May 2001. The central question before the House of Lords was whether, as a matter of legal principle, the employers of the warden of a school boarding house who sexually abused boys in his care may, depending on the particular circumstances, be vicariously liable for the torts of their employee. The House of Lords found that this was the case and overthrew previous legal findings. That judgment is very significant in respect of the issue of day time schools. The Minister and Deputy Coveney alluded to this, but the Minister fears that it may open the flood gates. I understand that because the Minister is responsible for the public purse as well as everything else.
We should consider the number of cases that have gone to the courts seeking redress in this regard initiated by people who, by virtue of the extension of the statute of limitations, are now entitled to lodge claims for sexual abuse. Figures from the Department show there are about 1,000 cases. Some of these people will be entitled to benefit under the legislation as proposed, but others, who were sexually abused in day schools, are not covered currently by the terms of the Bill. Obviously, they would much prefer a less adversarial approach. The numbers are manageable, contrary to what the Minister fears. A substantial number are already entitled to benefit under the Bill but, understandably, are having an each way bet in case it does not work out to their satisfaction. The Minister should seriously consider conceding, in light of vicarious liability and the numbers, at least to those who are currently in the courts and those who may have gone to the courts previously and won their cases in respect of abuse in day schools. That, as the minimum, would go a long way towards addressing the issue of day school entitlement, although not providing ultimate satisfaction. The Minister should consider that.
The Minister is being somewhat disingenuous by indicating that the door is being left open. He is leaving the door open only to enable him to add additional residential institutions if information comes to light because other provisions of the Bill restrict its scope to persons who were detained under the Child Care Act, 1908. That stipulation would not include the other categories of people about which we are talking.
Has the Minister any hope to offer to people who were sexually abused in day schools? Deputy Creed referred to the fact that they have already availed of the extension of the statute of limitations. Is the Minister saying to those people that they now need to go through the adversarial court system and that he is not providing them with a means of redress? It is wrong for the Minster to suggest they will have an opportunity to tell their story at the Laffoy commission. As the Minister knows, victims of particular teachers who have served time for their abuse have said clearly that unless they are included under the terms of this Bill, they will not participate in the Laffoy commission. They feel further let down.
It is a requirement of any Government in attempting to deal with a problem as sensitive as child sexual abuse that it ensures the victims do not suffer any more. It seems the Minister is not concerned about victims in day schools at all. It is a very narrow interpretation to state these children could go home in the evenings to their parents. As the Minster knows, the culture of the day was very much that a child would not have dreamt of making an allegation against anybody in authority such as a teacher, particularly against a religious person. It would have been unthinkable at the time. Furthermore, to suggest that they could have done so is to disregard the disempowering effect that abuse has on children. They would have been threatened by their abusers regarding what might have happened to them if they had told anybody about the abuse.
There is no doubt that the schools and teachers involved were legally in loco parentis. For that reason and because of the regulatory involvement of the Minster of State’s Department, I believe there is no question that she has a serious moral and legal obligation to provide a means of redress to those victims also. I want the Minister to state clearly today, given that it is not his intention to include those victims under this Bill, what opportunity, if any, he intends to provide to those victims for redress.
In respect of the orthopaedic hospitals, we have received much correspondence from disabled survivors' support groups about their experiences and their strong desire to be included under this Bill as well. The Minister has suggested that a category of persons who were placed in an industrial school and then moved to an orthopaedic hospital could be included. What about those people who did not enter an industrial school because of their disability, children who would have been taken into the care of the State in an orthopaedic hospital directly? Surely they should be entitled to be covered if they were placed in a residential institution and the State had a responsibility for the funding and payment of salaries in those institutions.
What hope is the Minister offering, if any, to those who were resident in Magdalen laundries and who were given to understand that they were not free agents? They were kept in a very secure residential setting. Not only did they lose out on many aspects of their childhood but they then had their adulthood interfered with as well and their personal freedoms severely curtailed. The were led to believe that they were committed to the laundry for a long period of time, in many cases up to their deaths. What opportunity will the Minister provide to those people so that redress can be obtained for the abuse they suffered?
Will the Minister indicate if he will include those people who were placed in foster care by the State and who suffered abuse at the hands of their foster parents? People have been in touch with us who were in that position.
I want to reaffirm a number of points that Deputy Creed made and to introduce one or two others. When the Minister was responding, I could not help thinking that he was not listening to us when we made points earlier. Will the Minister respond to the idea of having a phased approach to the redress hearings? Nobody wants former residential victims to become only a small part of the redress process. Nobody is proposing that — Deputy Creed and I put considerable time and thought into tabling an amendment that would avoid it. That is why we put forward, for the Minister's consideration, the idea of a phased redress process where residential institution victims would have an opportunity to tell their stories and be given redress first and when that phase was over, the scope would be widened to introduce the other categories with which the Minister seems to have such a difficulty. I want to end the speculation that, by promoting the idea that the scope of this Bill should be widened, we are in any way reducing the importance of hearing and offering redress to residential victims. We are proposing that be done first. When that is completed we can then move to the other categories.
How does the Minister propose to deal with the victims of sexual abuse in the categories which are not dealt with in this Bill? Will there be further legislation? Is there a promise to deal with it in the future? If they are not included in this legislation will they be expected to wait indefinitely to tell their stories and start a new chapter in their lives? As regards foster care, I cannot accept that in trying to put good legislation in place the reason for not including a category of people is based on the premise that there does not seem to be a lot of evidence to suggest there was wrongdoing in that area. People will not come forward until a structure which allows them to do so easily is put in place. The purpose of the Bill is to allow people who would not feel comfortable coming forward in court to come forward, tell their story and be given redress. I do not accept the point regarding foster care.
The only reason the Minister seems to have given for not including boarding schools in the scope of the Bill is that parents were encouraged to have an active role in the education and upbringing of their children. That may well be the case in modern boarding schools — it was certainly the case in the boarding school I attended. However, is it fair to assume parents played an active role in the education and upbringing of their children in all boarding schools 20 or 30 years ago? Maybe it is but I think it is something we should question. When one considers some of the abuse that happened in residential settings, I feel we have to raise the question of boarding schools. I would like to hear a more comprehensive answer from the Minister as to why boarding schools are not included in the scope of this legislation.
I wish to echo some of the points made by other members. It is important that we get an element of clarity on the issue of residential versus non-residential institutions. There seems to be a problem where a number of victims are the subject of complex, and at times contradictory, legal advice from their own lawyers as to whether they will be included or excluded from this process. That informs their rights in terms of legal actions that may already be under way. It is important that the Minister clarifies his intentions or gives an indicative timetable as to how these issues will be dealt with.
There are a number of recurring themes in each of the members' contributions, one of which is the question of having two phases. That is also raised in amendment No. 12 in the names of Deputies Creed and Coveney which reads:
In page 5, subsection (1), between lines 19 and 20, to insert the following:
"(a) undertake its work in two phases,
(i) the first phase shall deal with hearings and make awards to victims of residential institutions,
(ii) the second phase shall deal with hearings and make awards to victims of abuse in non-residential settings,".
That is obviously and very clearly outside the scope of this Bill.
Does the Minister want it ruled out of order?
No. If we want to extend the scope of the Bill to cover all those, it would mean going back to the Government and either extending this Bill or drafting a new one. We would have to consider all the implications and get advice from the Attorney General on how all the other groups involved could be accommodated. We set out to deal with the specific cases where the State had a direct control. We have clearly outlined the institutions which are involved. Deputy Lenihan asked that I be very clear about what institutions will be included. There is a schedule of them built into the Bill, which is very clear. If other institutions of a similar kind have been overlooked in some way, then through either the work of the Laffoy commission or otherwise these can be added to the list. This Bill is clearly about institutions of that kind and about the children who resided there. I am as sympathetic as the Deputies on the other side of the House on the question of other people who suffered abuse in other places. We are trying to deal with very specific institutions where the State had direct control. The State did not have that in boarding schools or other institutions.
I want to return to the points raised by Deputy Creed about orthopaedic hospitals. On Report Stage we will look at the question of including orthopaedic hospitals if children were placed there by the courts, even if it was done indirectly. I will also look at the question of foster care on Report Stage. I have to be clear in terms of definition as far as possible. Deputy Coveney said I was simply reading a response. There was a time here when only the Minister was allowed read because what the Minister said was definitive. A clear and definitive answer is what is required and Deputy Shortall asked for it in that case. That is why I read the clear, definitive and technical answer which came from advice given by our legal team and the Attorney General. When I finish reading the text I will then talk about it. If I did not give that answer I could be accused of not being forthright. That is why I always read the answer to any question raised.
Questions were raised about the culture of the day. I know there were problems with the culture, but there were very few people who did not suffer physical abuse at that time. That would be a very wide issue and one that would have to be dealt with separately and require serious consideration. There is also the question of people who have been before the courts. If at all possible I would like to find a solution to that. I will look at the issue of including cases which have come to the courts where a person has been found guilty from the point of view of compensation. I will seek to simplify the issue, as Deputy Shortall suggested, and will look at it on Report Stage. One of the issues is the arbitrary nature of that. My inclination as a Deputy and as a Minister is similar — if it can be done I would like to do it in this Bill. I will consider it for Report Stage.
The Minister referred to legal advice. I know it is not practice to publish that advice, but has the issue of vicarious liability been considered? This applies to day schools. I welcome the Minister's comments and his willingness to make progress. I also need advice from the Chairman about the amendments before us. If they are passed and the Minister pulls down the shutter on Report Stage and we make no progress, we will have no further opportunity to debate this. Our amendments have been ruled out of order and the Minister's amendments will be passed on Committee Stage. Will the Minister withhold his amendments until Report Stage?
Most of my amendments deal with issues that were raised earlier, along with technical issues. On Report Stage I will include amendments I regard as feasible.
Can I take it that the Minister wants to consider for Report Stage the issues of foster care, Magdalen laundries and orthopaedic hospitals and, in respect of day pupils, those who have been through the courts and have proven their case, or who have commenced court proceedings, but are not currently included in the Bill?
I do not know. It could become more difficult if there has not been a finding against a person, but we will consider that. As an ordinary, simple-minded politician it seems to me reasonably straightforward: when a person is found guilty in the courts the issue of compensation should be considered by a board. However, I cannot say that now as it will have to be fully examined. Either there will be an amendment to that effect or I will report back that it was considered not to be feasible for particular legal or other reasons. I will go into it thoroughly at that stage.
That causes difficulties for members of the committee. All these points were raised on Second Stage and it would have been far more satisfactory if we had been given definitive replies now. We will be asked here to approve amendments which copperfasten the nature of the Bill as it is currently proposed. Even the Title — Residential Institutions Redress Bill — restricts the scope of the Bill. We cannot go along with amendments in relation to definitions which would prevent the Minister from extending the scope of the Bill to the other categories he suggests.
There is a need for clarity at this point. The Minister should have been in a position to give definitive answers to cases made on Second Stage. If the Minister is, as I understand it, giving an undertaking to consider including those other categories, he should hold off on some of the amendments that would have to be changed subsequently.
I am not suggesting that the Bill be altered, but that within the context of the Bill, we see whether there is a case for including some of those people. I would have to consider that for Report Stage. There is nothing unusual about that. On Second Stage the Bill is discussed generally while on Committee Stage the individual aspects of the Bill are discussed, section by section. The amendments proposed are entirely consistent with the principle of the Bill. Six or seven of them are being proposed by the Opposition and we are accepting them. The matters under discussion are complex and I could receive an answer stating that they are arbitrary in nature, not feasible and will cause greater difficulty. I will try to define particular situations within those categories which could be brought within the scope of the Bill. If, when I do that changes are required, there could be consequential changes made on Report Stage.
I accept the bona fides of what the Minister has said and his willingness to look at the issues under discussion. However, by passing these amendments and confirming the residential bent of the Bill, the Minister is taking an action that is contradictory to what he intends to do on Report Stage. It would be better, procedurally, to leave these to stand on the order paper pending further consultation and return to them if necessary on Report Stage, providing a revised amendment which will deal comprehensively with the issue.
I cannot change the nature of the Bill. It is concerned with children and residential institutions and with which people can be considered in that context. Effectively, I am considering whether other groups, as specifically defined, can be included. It requires a closer examination before Report Stage.
It would be regrettable if——
It is a technical question, which I think we would be capable of handling if we needed to. Deputy Creed said he would accept my bona fides. I am saying that I will consider the issue for Report Stage and see if we can get any further in that regard.
If members accept the Minister's bona fides, can we put the question that the amendment be made?
There is one important point on which I require clarification, despite the replies from the Minister. I am not criticising the Minister in any way because I understand and respect his bona fides in this matter. However, if the Bill is concerned strictly with people in residential settings, with the words "residential" and "institution" being used, then clearly one category, namely people placed in foster care through the court system, does not qualify under the Title of the Bill. If we are considering change of this sort the Title will have to be changed, as will almost every reference that goes with it.
Can the Deputy not accept what I am saying? I have been through many Bills in this House. If the change is made then the consequential changes will also be made. It need not be done here and now. I will seriously consider the issues we discussed before Report Stage. That is all I am saying. If we can cover any other categories of people we will make any amendments which arise on Report Stage. Once we have discussed them here, it is possible to do that.
I absolutely accept that the Minister will do that, but that means changing the Title of the Bill, effectively.
If that were necessary, as Deputy Lenihan is assuming it will be. We will consider that situation, but they would have been in residence. In other cases they would have been in foster care residences. I would not get excited about the title of the Bill.
That is all the clarity I need.
If it means residential and something else, we can table an amendment to that effect.
That is perfect.
The amendments we are discussing propose the attaching of a Schedule to the Bill and giving the Minister power to add to it. It makes no sense for us to agree amendment No. 11, which specifies the categories of institutions which might be added to the Schedule. Why would we agree to that amendment if the Minister intends extending the categories to include those we mentioned who are not currently included? It makes no sense to go through the motions of approving this amendment if it is meaningless. It undermines what the Minister said, which we have taken in good faith. I suggest, at a minimum, the Minister defer the inclusion of this amendment until he has decided on the other matters.
This is amusing because the Deputies wanted me to insert a list, which I have done. If we have to amend it, we will do so.
Yes, but it can only be amended by virtue of the content of amendment No. 11, which specifically states that the people concerned must have been in residential institutions. If the Minister is to consider providing for people who worked in the Magdalene laundries or who were moved to orthopaedic hospitals and were non-resident per se under the definition of this Bill, why would he include this amendment?
This is the Bill as we are progressing it. I give an undertaking that we will consider those groups and categories to ascertain to what extent we can include any of them. If we can include any of them under the Bill on Report Stage, I will table an amendment to that effect. That is only a technicality. There is nothing more to it. We will move from Committee Stage, with the amendments agreed to, to Report Stage, but I give members an undertaking that we will consider the other issues. There is nothing unusual about that.
On a point of order, I request the Chair's guidance on this matter from a procedural point of view. The Minister is suggesting that we could pass an amendment here and then at a future date amend that amendment. Is it open to us to consider an amendment twice?
Is the Deputy talking about an amendment on Report Stage?
Yes.
Yes, I think so. That is my advice. The Minister can table an amendment on Report Stage. Is the Deputy talking about the Minister's amendment?
I am talking about amending an amendment.
I understand that can be done.
It can be done. Once an amendment is made, it will be the Bill, as amended, and an amendment can be tabled on Report Stage. The normal procedure is that once a matter has been raised and discussed on Committee Stage, it can be brought forward as an amendment on Report Stage. That is routine. Apart from these issues, further amendments in respect of later sections may be tabled on Report Stage.
Amendment No. 6 has been ruled out of order as it involves a potential charge on the Exchequer.
I move amendment No. 7:
In page 4, subsection (1), line 19, after "State," to insert "a court,".
This is a technical amendment to include the courts in the list of public bodies.
Under what circumstances does the Minister envisage the courts being a relevant public body in the context of the legislation, given that the thrust of it is to exclude the courts and have an informal setting?
The courts would have sent the children to the institutions.
In respect of the role of the courts and the question of the criminal sanction and criminal record that attaches to many of the victims who were incarcerated, I have pursued this matter on a number of occasions with the Minister for Justice, Equality and Law Reform and the Minister for Education and Science, most recently by way of a parliamentary question to the Minister for Education and Science last Tuesday. I welcome the Minister's reply to it. He said he was having further inquiries made as to the precise status in criminal law of the people concerned and that he would return to the matter again on Committee Stage. Presentations have been made to this committee by people who were incarcerated on foot of court orders, people who committed no crime other than the fact that their parents died. This matter is not specifically relevant to this Bill, but it is one we need to address as a matter of urgency. It is another layer of oppression the State has heaped on these victims.
The Minister for Justice, Equality and Law Reform in an earlier reply appeared to wash his hands of this issue. He said that if a criminal offence took place, there is nothing that can be done about it. Many of the people who were incarcerated committed no crimes. They were merely children who were born perhaps out of wedlock or whose parents died following which they were incarcerated. My understanding is that there is no differentiation in law in the treatment of those who committed a crime, which may have been minor and to which no criminal sanction would attach in today's era, and others who did not commit any crime. They are all treated the same. Can the Minister bring further clarity to this issue?
We are still in discussion with the Department of Justice, Equality and Law Reform on that matter and we will have a definitive position on it on Report Stage. I would have very much the same sentiment on it as Deputy Creed and other Deputies.
I move amendment No. 8:
In page 4, between lines 32 and 33, to insert the following subsection:
"(3) References in this Act to a person who as a child was resident in an institution include references to any case where a child was resident in an institution having been sent and detained there in accordance with the provisions of the Children Act, 1908.".
In the course of consultation on the Bill, some support groups expressed dissatisfaction with the use of the word "resident" as applied to their period of time in institutional care. From their point of view, they were incarcerated in the institutions. This point was also made by some Deputies on Second Stage. I said then that I understood the pain and offence which language can cause, particularly in the context we are now discussing. They said that we are dealing with legislation which requires precise language. While the word "resident" accurately reflects the legal position, I propose this amendment to go some way towards meeting the concerns of victims of abuse. It confirms that residents in institutions include those who were sent and detained in the institutions by operation of law. These are the terms used in the Children Act, 1908.
Not being familiar with the content or the raison d’ètre of the 1908 Act, perhaps the Minister could explain under what circumstances children were so directed to residential institutions. Are we talking about non-criminal acts which have the imprimatur of the courts that criminal sanction subsequently attaches?
It could be a question of destitution or continuing non-attendance at school. There were such cases. Criminal acts are also a factor.
Members from Right of Place made a presentation at one of our committee meetings and were able to show a court document which incarcerated the individual concerned at a residential institution. However, it transpired that that individual had not committed a crime. He may have been directed to a residential institution under the 1908 Act. Will a criminal sanction apply under that Act? If a person is incarcerated under it or another Act, is he or she disqualified from sitting as a member of a jury, for example, or from doing other things?
I understand, but we are discussing it. My impression is that it does not and, if it does, it should not. We are trying to get that point resolved for Report Stage.
I accept that.
I appreciate its importance.
It will not be any good to say to someone who was incarcerated and has the document that it only refers to the 1908 Act. If, under the interpretation of the law today, that Act means that criminal sanction still applies in that the individual concerned is debarred from participating in jury service, for example, the amendment does not go far enough. Perhaps the Minister might keep this in mind when teasing out the reason criminal sanction applies and outlining the penalties which apply to those incarcerated.
It is our intention to deal with it comprehensively.
Does the criminal record arise because people were committed to an institution? Does the difficulty arise because there was a committal order and they were detained?
Some of them were detained for non-criminal acts. Our impression is that it does not involve any subsequent criminal sanction and, if it does, it should not. That is what we are trying to clear up. We are in negotiations and discussions with the Department of Justice, Equality and Law Reform on the matter. We will have it cleared up one way or the other for Report Stage.
I welcome the thrust of the amendment. We have all spoken to people who are offended by the word "resident" because it gives the impression, rightly or wrongly, that they are free to come and go as they please. The amendment seeks to provide for those who considered themselves to be incarcerated or detained. I am also glad the Minister will provide clarity on whether a person has a criminal record when he or she leaves such an institution, even if he or she did not break the law before being incarcerated. I was faced with this problem a number of days ago when a former detainee or resident of an institution in Cork told me he had been barred from jury service for the past 15 years, a matter about which he was concerned. It is important to clear it up on or before Report Stage.
I move amendment No. 9:
In page 4, subsection (3), line 34, to delete "is a reference to a section of this" and substitute "or a schedule is a reference to a section of or schedule to this".
We now proceed to amendment No. 10. Amendments Nos. 92 and 97 are cognate and amendment No. 93 is an alternative. Amendments Nos. 10, 92, 93 and 97 may, therefore, be discussed together by agreement.
I move amendment No. 10:
In page 5, subsection (1), line 4, to delete "Residential Institutions" and substitute "Victims of Abuse".
This amendment goes to the heart of the earlier debate. I do not propose to dwell on it, given the Minister's clear commitment to consider the issues of Magdalene laundries, orthopaedic hospitals, foster care and the victims of sexual abuse in day schools. I want to change the Title of the Bill to the Victims of Abuse Redress Bill, rather than the Residential Institutions Redress Bill. However, I will withdraw the amendment on the basis of what the Minister said during the debate on section 1, although I reserve the right to resubmit it on Report Stage.
I move amendment No. 11:
In page 5, before section 4, to insert the following new section:
"4.—(1) The Minister may, by order, provide for the insertion in the Schedule of any other industrial school, reformatory school, orphanage or children home in which children were placed (by or with the knowledge of a public body) and resident and in respect of which a public body had a regulatory or inspection function.
(2) Where it is proposed to make an order under subsection (1), a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving such draft is passed by each such House.”.
It is madness for us to accept the amendment for the reasons I have already outlined. I want to vote against it.
We will continue with our consideration of the Bill. Amendment No. 12 is out of order as it involves a potential charge on Revenue.
I move amendment No. 13:
In page 5, subsection (1)(b), line 23, after “advertisements” to insert “, direct correspondence”.
I agree that the redress board should use all reasonable means to publicise its activities. In principle, the amendment appears reasonable. I will consider it and return to it on Report Stage.
Amendments Nos. 14, 15 and 35 are related and may be discussed together by agreement.
I move amendment No. 14:
In page 5, subsection (3), between lines 39 and 40, to insert the following:
"(c) shall be conscious of the need to adopt fair procedures to ensure that false allegations of abuse are not entertained and shall be obliged to inform all third parties against whom allegations of abuse are raised.”.
This amendment concerns a critical issue. From international experience, particularly in Canada, we can see a big storm brewing in respect of allegations made and compensation paid. The courts are now involved directly, thus undermining the validity of claims that were made, as persons had their good names tarnished by allegations that did not stand up. The amendment seeks to determine the modus operandi by which the board shall proceed. Everyone is anxious that it should proceed in an informal manner and that, where allegations are made, the board will make every effort to establish the validity of such claims. Obviously, a person claiming to be a victim of abuse will point the finger at a specific institution and, implicitly, at a specific individual. What is happening in Canada, however, if replicated here, would undermine the value of the Bill. It would mean we could discover subsequently that a claim was not substantiated. The amendment seeks to put in place fair procedures for all “to ensure that false allegations of abuse are not entertained” and “to inform all third parties against whom allegations of abuse are raised”. The amendment stands on its own merits. It would not be fair otherwise. If we do not provide for this the constitutionality of the Bill will soon be challenged in the courts, which would delay victims’ rights of redress. It would be wise to make provision at this stage for everybody to be given a fair hearing. The board should be obliged to do so.
I share the concerns outlined by Deputy Creed. The committee has discussed this matter before. My understanding was that negotiations were taking place with representatives of the religious orders, and that these fundamental and serious concerns were brought to the Minister's attention. Following our hearings with the bishops' representatives we asked them to submit suggested amendments but they did not arrive. There was some correspondence very late in the day — yesterday — which did not make suggestions concerning amendments; it just referred to the issues with which they are concerned. I do not know if they were operating on the basis that the Minister would bring forward his own amendments, but it seems that is the way it was going. They certainly led me to understand they were negotiating directly with the Minister. He knows their concerns, namely, that people against whom allegations are made will not be notified of those allegations and, furthermore, will not have an opportunity to defend their good names. The basis of the Bill would seem to go against the concept of natural justice and I am very concerned that there could be a constitutional challenge to it. The Bill is wide open to such a challenge. I cannot understand how one could have circumstances where allegations are being made, yet the person against whom they are made is not made aware of them and does not have a right to defend themselves. There is a real danger that there will be a challenge and that this provision could be held up for quite some time as a result. That would not be in anybody's interest. I would like the Minister to give us his views on the claims that are being made, and how he might address them.
I understand the concerns expressed by the Deputies. We are still in negotiations about the issue. Through these amendments, Deputy Creed wishes to address what he sees as the one-sided nature of the redress scheme. In particular, he wants to ensure that any person accused of abuse has the right to defend his or her character. I have no wish to see anyone's character damaged by this redress scheme. That, of course, is not its purpose. Neither, however, do I want to create a situation where the position of victims of abuse is no better through this process than it would be if they had taken their cases to court. I do not want to see the suffering of victims become the object of competing legal teams in an adversarial process.
I must emphasise that the redress process is not fault-based. It is non-adversarial and is not a criminal or civil court by proxy for those accused of abusing children in residential care. The State deals with those accused of abuse in the criminal courts. The broader issue of child abuse in the State, and in many forms, is being examined in the commission to inquire into child abuse, whereby all the accused people — except in the case of the confidential committee — will be given every opportunity and the resources to defend their good names. The redress board is a forum solely for the victim to ensure reparation is made for damage suffered. It is effectively an injury-based forum.
Much time has passed since many of the incidents, which will be complained of to the board, happened. It is enormously difficult at this remove to decide the merits of one case argued against another, solely on the basis of one person's word against that of another. If we start to apply a burden of proof based on the balance of probabilities, then I find it difficult to see how we could have any hope of providing financial redress for any more than a minority of those entitled to it. By operating the process in the way currently contained in the Bill — by refusing to point the finger of blame — we can deal adequately and fairly with the just needs of the survivors of abuse without holding anyone personally responsible.
The Deputies' amendments would inevitably lead the redress scheme into an administration of justice context where legal challenges would be inevitable and numerous. This would seriously undermine its intention. I do not, however, dismiss the concerns expressed mainly by the congregations involved in the management of the institutions. I appreciate the sense of hurt of many members of those congregations that they are being tarred with the brush of abuse. Many members who were not involved in any way are very concerned and upset that they are being tarred with the brush of abuse when they had no involvement whatsoever. I understand their position.
Officials of my Department together with officials of the Attorney General's office are continuing consultations with interested parties on this issue, that is, our discussions with the religious congregations. Having heard the Deputies' views on the issue, I undertake to consider further how the interests of long delayed justice for victims of abuse can be met while avoiding unnecessary damage to the reputation of innocent persons. I also propose to bring forward a provision which will strengthen the confidential nature of the redress board process and avoid damaging publications of details of claims or awards.
We either go for this system, on a no fault confidential basis, or move to an adversarial system because there is nothing in between them. We want to establish how best to carry out the no fault system based on an assessment of the injury. This is all spelled out in the Bill. That is what we are trying to do. It is a question of finding the right balance. Once we move to a situation where people will be advised that somebody has inadvertently or indirectly mentioned his or her name in a confidential context, it will open the whole matter up to the adversarial system. That is the problem. There is nothing in between these two systems. We are discussing the matter further with the parties affected to try to agree a method to protect the various interests to the greatest extent possible before Report Stage.
Apropos of what we discussed this morning and now this amendment, I do not believe we should have commenced Committee Stage when so many substantial outstanding matters are still the subject of negotiation and on which the Department and the Minister have not finalised their thinking. We will have a debate in a vacuum because outside bodies and the Minister are still prevaricating on these issues. We are being asked to withdraw or vote on amendments which we cannot resubmit on Report Stage. By its very nature, Report Stage is a much more restricted form of debate when the Minister will be able to leap scot-free from substantial scrutiny of what he might come back with in terms of his revised thinking.
It is shabby to say the least to ask us to take Committee Stage in that context. There are very substantial issues in this amendment which, if the Minister does not shift his position, will undoubtedly lead to a constitutional challenge in respect of persons who will feel the finger of accusation has been unfairly pointed at them and who will not have been given adequate opportunity to present their side of the case.
We have to get to the bottom of the genesis and gestation of this legislation because, on the one hand, there is a very substantial trade-off. I imagine the Department and the religious, in their abstract form, have agreed the broad thrust of the Bill and that where somebody accepts an offer of compensation, he or she cannot subsequently pursue the individuals fingered in that accusation through the courts for further redress in a civil case. That is a very substantial trade-off.
As members of the committee, we have been inundated with representations by individual members of religious institutions who are very concerned that accusations will be made and they will not be in a position to defend their name. The Minister said this is not an administration of justice, but if he looks at section 6, he will see that it reads, "Where a person who makes an application (an 'applicant') for an award to the Board establishes to the satisfaction of the Board . . . (c) that he or she was abused while so resident . . . ” That is a finding of fact. The process of further calculation from that finding of fact will be to find out against whom that accusation of abuse has been made. This is happening in Canada. It is not in the interests of victims that we embark on something which will subsequently be undermined by a court challenge which will strike down the legislation or where after somebody has received his or her award on bona fide grounds, the legislation will be thrown into disrepute by virtue of a successful court challenge.
I cannot see how we can proceed without giving those against whom accusations are made the right to defend their good name. Given the trade-off later in the Bill, if victims accept an award of the board, they are obliged to waive their right to pursue a civil case against the perpetrator. Many of those against whom a charge is legitimately made will willingly walk away and say this is a reasonable trade-off provided they cannot be pursued in a civil action and the award is accepted. Where is the protection for those against whom accusations are made and who feel very strongly that they are false? This is a legal minefield. The Minister has said he has not yet finalised his thinking. It is unsatisfactory that he expects us to vote on an amendment now, which will leave him off scot-free on Report Stage, or to come back in a truncated Report Stage debate when we will still not secure the changes required.
It is quite clear the Minister is not ready for Committee Stage. There are two major aspects of concern in relation to the Bill — the issue we discussed this morning about the scope of the Bill and the categories covered and this issue regarding concerns about natural justice and the legal basis for the legislation. I do not know what to think about the Minister. I do not know whether he is playing for time, trying to put off a decision until Report Stage, playing to the gallery or genuinely saying he will look at the matter. These are not the normal suggested amendments to a Bill where a Minister will say he or she will look at them to see what he or she can do before Report Stage. These are the two most fundamental aspects of the Bill. Clearly the Minister's thinking on both these aspects is not finalised. Therefore, what are we discussing? If we agree something here, we do not know if the Minister will go off and come up with completely different proposals on it.
I suggest we adjourn at this stage because I am not prepared to continue with this charade of discussing something which the Minister has not thought through and which might be changed fundamentally in the future. In fairness to all of us, we are all putting in time trying to grapple with this legislation, but it is clear that the Minister is not sure where he is going on it. We should allow the Minister time to clarify his position on both these issues and come back some time in January for a meaningful Committee Stage debate on this Bill.
On the amendments rather than the general issue with which Deputy Shortall dealt, I understand the difficulty. The idea of setting up a redress board is that one avoids the type of confrontation one would have in court. I understand the concept behind this is that we would deal with very sensitive issues of victims in a non-adversarial way and that we could move forward and try to give some form of redress and compensation which would allow people to get on with their lives and tell their stories.
However, in the quest to bring some kind of justice to the lives of the many victims, we cannot create further victims of natural justice by allowing a situation where accusations possibly could be made against people who are innocent of any wrongdoing. I fear that if there is a constitutional challenge to this, the whole thing could fall. That would be disastrous for everybody, but most of all for the victims who are seeking redress and deserve it. I am very concerned that there seems to be fundamental aspects of this legislation which have not been decided yet and we are proposing to move on to the last Stage without getting any form of confirmed idea as to where we are going.
I wish to make a suggestion which the Minister might consider. At a minimum, perhaps we could incorporate into the legislation a system where people who have accusations made against them personally, or their families in cases where somebody may be deceased, at least would be able to put their side of the story in writing to the redress board where it could be considered. If there are clear contradictions in evidence, perhaps that person could be called to an oral hearing.
I do not think we are proposing a court type situation where victims would be cross-examined in an aggressive way. Clearly, that is not desired and would only create further difficulties for people who have suffered too much already. I am very concerned that more than half way through the Committee Stage process we still do not know where we are going on fundamental issues like natural justice. There is still a real concern that there will be a successful constitutional case against the legislation.
I want to make it clear to Deputies because they keep suggesting that we abandon the Bill and put it off until later——
Nobody is suggesting we abandon the Bill. The Minister has not finalised the thinking on this.
Deputy, please.
If I came in here and said, "We have got this 100% right. I am not prepared to consider anything else for Report Stage", the Deputy would have a real cause for concern. What I am saying is that the Bill is satisfactory as it stands. As far as our advice is concerned, we could go ahead with this Bill as it is, but that is not what we are doing.
Why is the Minister negotiating with the bishops?
In fairness, the Minister wants an opportunity to speak.
It is a confidential arrangement.
What is a confidential arrangement?
We are talking about what happens in making the awards. The Bill provides that it is a confidential arrangement. The kind of thing we are looking at is how can one make as certain as possible that it is a confidential arrangement. If one goes outside the approach we are taking in the Bill, then one must contest them all in the courts.
Deputy Coveney voiced a genuine concern, which I understand, about a case where an accusation is made. Basically it is a question of assessing whether the person was in the institution at the time and if the person can show that he or she suffered injury, that there are symptoms and signs. In many cases it is not difficult, but, in any event, there will be experts to do that in a confidential context.
As soon as one takes it outside that and says, "If somebody mentions somebody's name and there is some accusation, then those people should be able to write in, make their cases and say that they were there all right, but that nothing like that ever happened", it is a matter for the courts. Our advice is that such occurrences would open it up. We can pass the Bill as it stands and get on with the job. We are trying in every way possible and that is where the negotiations come in.
We are not even on Committee Stage. If the Minister is in consultation with the religious orders, they should be finalised first.
It is an abuse of Committee Stage. It is an abuse of the House to proceed in this fashion.
Will the Deputy listen to what I am trying to explain? The committee met with the religious orders. It thought it might be reasonably simple to come up with some sort of amendment to meet their requirements. The Deputy does not have that amendment. We do not have it either, but we are prepared to continue negotiating and looking until we get to the next Stage, which is Report Stage. If there is a measure we can include that will strengthen the current position, we will bring forward an appropriate amendment. Again, that is the procedure with any Bill when it is going through its Stages in the House.
As far as we are concerned at present, this Bill meets the requirements. The Deputy mentioned Canada and we were told also about a case where, following settlements, an individual passing along rolled down the window of his car, as I am sure all members will be aware, and called out to a former member of a religious order, "We got money out of you". That sparked off repercussions because the whole matter was supposed to be confidential, but everybody then felt that they were being slighted and regarded as abusers.
One cannot get over the fact that when this happens within an institution and it is not stopped there, people are horribly and terribly damaged and it affects the whole institution. We know Dáil Éireann is affected by these sorts of issues at different times. One cannot get over that fact.
I am sorry that these things happened, just as everybody here is very sorry that they happened. I am sure many of the religious, some of whom were working within those institutions and many of whom were never involved in those institutions, feel that they are being maligned and that people today see them in a different light, but we cannot resolve that situation. However, we can give redress in a simple way to the people who suffered in that situation. If we have to take risks in doing so, let us take the risks. It is worth taking them. It is not worth putting it off. As far as the Government is concerned, we have the advice of the Attorney General on what we are doing and we can go by that advice.
If, between Committee Stage and Report Stage, we can further strengthen the position, we will certainly do so. I understand that Deputies are listening to what people are saying and are informing them that if they can find a way to strengthen the position they will be glad to do so. We will do the same, but we may not be able to find any other way. We are still open to finding another means, if possible, and we are in the process of testing a number of methods. As far as I am concerned, the Bill is satisfactory and there is no need to suggest that we should walk away from it. We can proceed with the Bill as it stands.
I find it an entirely unsatisfactory abuse of parliamentary procedure that the Minister should take Committee Stage of the Bill when it is clear that he is unprepared and that there are a number of fundamental issues which remain unresolved and which are still the subject of consultation. Members are being expected to make binding decisions in respect of these matters when the Minister has not finalised his Department's philosophy in respect of them. He is in ongoing negotiations and we are expected to make final decisions. That sort of treatment of Members is shabby in the extreme.
It was interesting that the Minister stated that he has received legal advice and that he is aware of the risks, which he believes we should take.
There is no simple solution.
In my opinion, the Minister is playing fast and loose with people's constitutional right to natural justice. What he is doing will lead to the creation of other victims in this process, namely, those who will be wrongly accused. It will also undermine the validity of awards that will be made to genuine victims and bring the entire process into disrepute. It would be advisable to conclude our deliberations on Committee Stage at this point until the Minister is in a position to inform Members about what exactly he is considering. I cannot go along with what he said, namely, "We have the advice, we know the risks. Let us take the risks and proceed to pay compensation.".
I did not say that. I said——
The record will show that the Minister did say it. I wrote down what he said. The Minister stated that "We know the risks, let us take them."
We are satisfied that there are no risks. I am saying that if there are risks, why not take those risks in favour of the people who were abused? The alternative will be for them to go before the courts.
If taking such risks proves ultimately to create another victim, namely, a person who is wrongly accused and who seeks to vindicate his good name in the courts, it will undermine the validity of all bona fide awards made under the legislation. Victims have gone out on a limb by appearing before the committee and making public the fact that they were abused. They will now be known as victims in their own communities. All it will take will be one case taken under the legislation that will prove that an award was wrongfully made. There are thousands of such cases, so there are risks. One case has the capacity to undermine the validity of all bona fide claims. It is not fair, and it is not proper parliamentary procedure, for the Minister to proceed with Committee Stage until we know his final thinking on this issue.
Awards will be made because people were placed in an institution where they suffered an injury.
And because it is stated under section 6(1)(c) that an award will be made because “he or she was abused while so resident”.
If they suffered the injury while they were resident.
That is a finding in fact against an individual.
There is no individual mentioned there.
A victim is not going to come before the committee and state that he was abused without identifying the person who abused him. That is what will inevitably happen.
He or she will not have to but may do so. The finding will be made on the basis that the person was in an institution and is in a position to show that he or she suffered while resident there. Victims are not obliged to accuse anyone. There will be a separate body at which they can do so if they wish. However, I understand how people can say that a person may mention the name of the individual who abused them in the course of appearing before the board. The only alternative is to oblige everyone to bring their cases before the courts.
Perpetrators of abuse will want to avail of the quid pro quo the Minister has included which will exempt them from civil action, particularly if they are guilty of the offence. However, a person who is wrongly accused will want to be heard by the board and, if not satisfied, will want the right to appeal to the High Court. Victims should also have that right to appeal and I deal with this matter in a later amendment.
It is unlikely that the perpetrator will make a contribution. It will be the employer of the perpetrator who will make the contribution.
We will deal with that later because we do not know what is happening in the ongoing private negotiations about that matter and finality has not been achieved. We do not know the colour of the Minister's money or that of CORI. We are totally unprepared to deal with Committee Stage.
When we had informal discussions about this matter on Tuesday, I put it to the officials of the Department that, under these proposals, a victim will come before the redress board and claim to have been abused by X. If the redress board finds that the person was abused and makes an award and if no one else apart from X has been accused, clearly it will be accepting that X was the abuser. It seems extraordinary that a named person who stood accused — this will be the implication inherent in the board's finding — would not have the opportunity to defend himself or herself in such circumstances. It is about this that we are concerned.
The Minister is showing complete and utter disregard for the committee and for the parliamentary procedures of the House. Obviously he is not satisfied that the Bill stands up to scrutiny.
I have said that I am satisfied. I made it clear because allegations are being made about that matter.
Then why is the Minister continuing to negotiate with the bishops of the orders?
I tried to explain that, in effect, if I came before the committee and stated "That is the Bill, take it or leave it and that will be the end of it"——
We will leave it.
These are fundamental aspects of the Bill.
We are on Committee Stage and I am prepared to listen to any further suggestions the Deputy may wish to put forward. I also stated that the outside negotiations can continue while we are debating Committee Stage but they must be concluded when we reach Report Stage.
Does the Minister not accept that he is completely undermining our position by continuing to engage in negotiations on fundamental aspects of the Bill? He is going through the motions of taking Committee Stage when he will probably reach some agreement with the bishops of the orders and return to us with a radically changed Bill.
The Deputy has made the point.
The Minister made the point earlier that we had not come up with the relevant amendments. The standard practice is that parties interested in a particular item of legislation suggest amendments to the Opposition. That is the way the system works. The bishops have not done that because they are operating on the basis of the expectation that they will reach a private agreement with the Minister in respect of this aspect of the Bill.
I am not negotiating with the bishops.
The Minister is negotiating with CORI.
Yes. That body is representing the religious.
The bishops are objecting to the Bill independently of CORI. The fact that the Minister is continuing to negotiate with the representatives of the religious means that he sees some reason for doing so. If he is satisfied that the Bill represents his final thinking, as it stands at present, there is no point in negotiating on it. He is putting us in a difficult position by expecting us to discuss aspects of the Bill, in good faith, while he is pursuing another course of action with outside bodies behind closed doors which may lead to the emergence of entirely different legislation. It is clear that the Minister is not ready to take Committee Stage of the Bill, particularly in view of the fact that negotiations about certain aspects of it are ongoing. We should adjourn at this point and return as early as possible in the new year when the Minister has finalised his thinking on those two fundamental aspects.
There is no plan to return with anything different from the principle and basis of the Bill. It is part of the normal democratic process of considering a Bill to debate and discuss the issues raised by Opposition Members, and if some of them lead to further strengthening of the Bill, I am open to that. I have listened to Members and others in this regard. The committee invited people to make presentations, listened to what they had to say and asked them to formulate amendments to meet their needs. However, the committee did not receive those. This could mean those people do not see an amendment as necessary to make the change they require and that they are satisfied with what is included in the Bill.
I am satisfied with what is in the Bill, but I am prepared to make adjustments to it if we can strengthen it. I recognise the difficulty which has been highlighted by Opposition spokespersons. It arises because of the basis of the Bill, namely, a no-fault basis where people prove they were in an institution and suffered abuse there. It is a generous approach, and if we are to adopt it, we must control it as much as possible by keeping it confidential, among other things. If there is anything we can do to strengthen this, I am prepared to examine it. We have not had proposals so far from the Opposition or elsewhere which would have this effect without undoing the principle and purpose of the Bill. This is the problem.
I listen constantly to the committee and to others and this is done with every Bill. The only difference is that it is a much simpler matter if the Bill concerns business. In this case, it is a very sensitive issue and one in which the Government has decided to adopt this approach and provide a remedy of this nature for the people concerned. We have put forward a way in which we plan to do this. If it can be tweaked and improved, that is fine, but we are satisfied with the Bill as it is.
The Minister is deliberately sending out contradictory signals. On the one hand, he is saying clearly he is satisfied with the content of the Bill while, on the other, he is saying he is prepared to consider the matter further and has ongoing consultations with representatives of the people who ran these institutions. Why are these consultations ongoing? Why does the Minister not tell them to take a jump given that he is satisfied with the content of the Bill?
The previous amendment was a minor technical one. The Minister said in the discussion that he is prepared to make further efforts to ensure all potential victims can be contacted. This is not a major issue and may involve examining the possibility of direct correspondence with victims, given that the names of all who were in the institutions in question are available, as opposed to just placing press notices. The Minister said, if I did not press the amendment, he would consider how best its intent could be bolstered on Report Stage.
However, this amendment involves substantial changes to the content of the Bill. The Minister said in reply that he is satisfied with the content and is not prepared to accept the amendment. However, he also said to friends outside the committee that the door is not closed and that he will conduct ongoing consultations. There is a fundamental contradiction in what he said. He cannot look in both directions at once. He is not having further consultations given that he is satisfied with the Bill and is not prepared to concede on this amendment. The Minister has not concluded his consultations.
It is an abuse to expect committee members to debate these issues when the Minister, the Department and the Government have not finalised their thinking on these issues. We are being asked to make a decision relating to procedural matters. If we press the amendment to a vote, it cannot be resubmitted for further consideration on Report Stage. If we do not, we have an opportunity of a two minute contribution on Report Stage to make the point to which the Minister can say "no", after which the amendment will be put to a vote and that will be the end of the matter. That is what the Minister wants us to do. He wants a truncated debate on Report Stage——
That is not true
——and he does not want us to press the amendment now because he is involved in ongoing consultations. Can the Minister explain the fundamental contradiction in what he has said, that he is satisfied with the content of the Bill but is having ongoing consultations with outside bodies? That is a fundamental contradiction he cannot square.
I can. Just as I listen to Members, I listen to others, and that is the normal procedure on and between every Stage of a Bill. That is why a period is sought between each Stage.
The Minister did not seek sufficient time to get his thinking right on this.
The Deputy has been trying to delay this Bill from the outset. I do not know what is his motivation. Is he trying to delay it until after the election?
I have asked the Minister on numerous occasions to publish the Bill for its Second Stage debate, but it is obvious he is not ready for Committee Stage because he is in ongoing consultations. It is an abuse of Parliament.
That is not true. There is a problem with the Deputy's amendment in that it is different from the purpose of the Bill and we see many difficulties in it.
Did the Minister consult with outside bodies along the lines——
It would create difficulties. If the Deputy, I or outside bodies could suggest a further amendment on Report Stage which would consolidate confidentiality, the methodology or whatever, I would be prepared to examine it. I am prepared to examine this issue further between now and Report Stage. The Deputy, anyone outside the House or interested groups can do the same. It is not true to suggest the Bill is defective in some way. As far as we are concerned, it is not. I am prepared to listen to any workable and acceptable means whereby the Bill can be tightened up. I am prepared to look for that up to Report Stage.
It is my understanding that the bell for the vote was still ringing when some of our members were literally coming through the door. There seems to be an element of confusion in relation to the vote. Perhaps the Chair could give some guidance as to what procedure we should follow.
There was a problem with the bell not ringing originally.
What time is allowed after the bell stops ringing?
Two minutes.
The bells were ringing as we came in the door.
There was a problem in that the bells did not ring when the vote was called so the vote which has been taken cannot be valid.
Perhaps we could retake the vote.
We will have to retake the vote. Let us hope the bells work this time.
Section 4(1)(a) concerns the making of awards in accordance with the Act which are fair and reasonable, having regard to the unique circumstances of each applicant. How can the Minister square the obligation on the board to treat, in terms of awards, each applicant as an individual and to take into account the individual circumstances of each applicant while also proposing to proceed along the lines of the matrix system of awards, which is what is envisaged in the report of the committee established to decide levels of compensation? This will involve compensation being made available to categories of victims rather than making awards commensurate with each individual’s unique circumstances as contained in section 4.
In the first instance it is a question of meeting the level or degree of injury suffered by the individual. That is unique to each individual. The range of compensation within any category would cover this issue. Essentially, what one is doing is meeting the degree of injury which is unique to an individual. There is a scale and range within which an assessment can be made.
This is another vacuum in the Bill because we do not know the content of the report we are awaiting in terms of the compensation established by the Minister. I know from talking to victims that they are not happy with the proposed matrix emulating what happened in other jurisdictions. Obviously we must wait and see what they come up with.
I hope we will have that by Report Stage.
It would have been of great benefit to have had it for Committee Stage.
We have set up an expert committee to look at the issue. I have spoken to some of the people who have been abused and they are happy with the expert committee and look forward to its findings. I am aware everyone may not express satisfaction.
I concur that most people I met were impressed with the committee. However, the fear is that the matrix might be imported from other jurisdictions. This would be at variance with the unique circumstances contained in section 4.
We will have to wait and see what the expert committee says. I take it the committee will bear in mind what is happening in other jurisdictions and relate it to this jurisdiction.
I move amendment No. 16:
In page 5, subsection (1), line 41, after "members" to insert "(being an equal number of men and women)".
My amendment seeks to ensure an equal balance of men and women among the membership of the board.
I do not wish to cause difficulties in this area. However, I would be prepared to consider that when making appointments the Minister might bear in mind the need to retain the gender balance. I would be prepared to consider such an amendment for Report Stage.
I move amendment No. 17:
In page 6, subsection (4)(b), lines 5 and 6, to delete “the Minister” and substitute “by resolution of the Oireachtas”.
This amendment concerns the membership of the board. I find it objectionable that on a whim the Minister could decide a member of the board is no longer fit to be a member without reference to anyone else. It is important that some provision is included for the removal of members but it should be by resolution of the Oireachtas rather than solely at the discretion of the Minister.
I am of the opinion that the appointment and removal of members of the board should be an executive rather than a legislative function. This position is consistent with the appointment of members of the commission to inquire into child abuse. It does not matter who is the Minister. It would be an executive decision and natural justice would have to apply, as is the case in all such executive decisions.
Let us call a spade a spade. We are talking about members of the board who will be making decisions and disbursing money to victims from the public purse and someone who might contribute to that compensation fund. I am not suggesting the Minister might at some stage look at the awards being made and say, "We need to protect the public purse; the generosity of the board is being driven by a particular board member and if that member were removed perhaps it would not cost the Exchequer as much". I just think the powers the Minister is assuming unto himself require some checks and balances. Perhaps removal being vested in the Houses of the Oireachtas by resolution rather than solely by the Minister would be a fair compromise.
If a Minister feels the award is too great, he or she can appeal to the review committee. The Minister does not have to rely on such draconian measures.
That would be a very public showing of one's hand.
I would not be so suspicious. I have seen many Ministers from all parties being involved over the years and I would not be as suspicious of Ministers as the Deputy appears to be.
I am paid to be sceptical.
I do not think it is borne out by the experience in this country. It would become very burdensome if one had to go back to the Legislature on such matters. If such a situation arose, given all the requirements of natural justice and so on, the Legislature would probably be just as happy if the Executive dealt with a situation where something extraordinary arose, which is what normally occurs. This is all above board in any event.
I move amendment No. 18
In page 6, between lines 16 and 17, to insert the following subsection:
"(7) The Chairperson shall be a serving member of the judiciary of High Court rank.".
This is another important amendment. Virtually all the organisations I have met which are representative of victims have spoken about awards being commensurate with High Court award levels. In respect of the composition of the board it would be desirable, notwithstanding all the other qualifications individual board members would have, that the chairperson would be a member of the Judiciary of High Court rank. I hope the Minister will accept my amendment.
I agree in principle that it would be appropriate for the chairperson of the board to be a senior serving judge. However, we should be mindful that there are others equally capable of discharging the function, including retired senior members of the Judiciary or senior members of the legal profession. The board's duties will be onerous and will require the devotion of some years. We must, therefore, be practical and leave open the option to have a broader field of potential appointees. I guarantee a great deal of thought will accompany the process of appointing the chairperson and other members of the board. I agree with the Deputy that the chairperson should have very considerable legal expertise and experience and that it would be desirable for him or her to be a senior serving judge. However, a senior judge who has just retired or a very senior barrister and member of the legal profession may be available. I do not want to be too restrictive in case it would cause difficulties at some stage.
Amendment 24 is consequential on amendment No. 21. Amendments Nos. 21 and 24 will be discussed together.
I move amendment No. 21:
In page 6, between lines 32 and 33, to insert the following subsection:
"(3) Where a court has made a determination in an action arising out of circumstances which could give rise to an application before the Board the plaintiff in that action shall not make an application to, or be heard by, the Board and shall not be entitled to receive an award under this Act in respect of those circumstances.".
I propose that where there has been a determination by a court of matters which may be the subject of an application to the board, it would be appropriate that the board would not have the power to second guess the courts. Where there has been a full hearing on the issue and the court finds that the claim does not merit an award of compensation, then it would seem there has been a complete examination of the facts and, where the case has been found wanting, it should not be for the board to make an award.
Amendment No. 24, however, ensures that where a court has made an interlocutory determination only, this will not disqualify a claimant. This covers issues such as a decision in relation to a discovery application.
I know of an instance where the courts made a determination in respect of a civil case pursued by a victim but the award made in the court was virtually useless to the abused victim because the abuser was not in a position to pay compensation. Has the Minister given any consideration to those circumstances where an exception might be made in respect of the board stepping into the breach, so to speak, to pay some redress to a victim who has proven his or her case in court but has not received any redress?
Section 6(2) states:
A person who has received an award from a court or a settlement in respect of an action arising out of any circumstances which could give rise to an application before the Board shall not make an application to, or be heard by, the Board or be entitled to receive an award under this Act in respect of those circumstances.
One could have a situation where one could second guess the courts. I appreciate that such a case could be unfortunate. However, that is a decision a person would have to make. The person would have to decide to go for one or the other.
I am speaking about a case which was taken long before the Taoiseach's apology or any mention of redress being provided by the State. An award of damages was made but the person against whom the award was made was not in a position to pay them. Could a facility for the board to intervene in such limited circumstances and honour an award which had already been made be included in the Bill? I am sure there is no more than a handful of such cases.
Such a measure would lead to the re-opening of litigation and that would create a wide precedent. I will look at the Deputy's suggestion, but I would not be hopeful of the suggestion being accepted.
I do not see how this would cause litigation to be re-opened. The litigation is closed. It would merely be a case of the board funding an award which has already been made.
The award was made on the basis of litigation.
But not paid.
It was not paid.
The award will not be paid because the abuser is not in a position to pay and that has been proved.
Was the person in an institution?
It would be one of the categories which the Minister earlier agreed to consider.
Such a provision would not involve the re-opening of a case. The whole point of the redress board is that it does not establish fault. It merely accepts that a person was abused while resident in an institution and is entitled to redress. I do not accept that a case would be re-opened which had already been decided.
I will look at this. Perhaps the Deputy will give me a note on the matter. As we discussed the amendment, he elaborated a little more. Nevertheless, there is the problem of the dual process.
Amendments Nos. 22 and 23 form a composite proposal and may be discussed together. Is that agreed? Agreed.
I move amendment No. 22:
In page 6, subsection (4), line 35, to delete "not".
This amendment re-opens an old battle with the Minister. The Minister has set himself and his Department against providing people against whom accusations are made with the right to defend themselves. The effect of my amendment would be to oblige an applicant to produce evidence of abuse. It appears strange that the board will not require applicants to produce any evidence of negligence.
The board will award compensation on a no fault basis. Evidence that a claimant resided in an institution and suffered injury there will be required. The extent of the injury must also be established. The subsection states:
An applicant shall not, when presenting an application to the Board be required to produce to the Board any evidence of negligence on the part of a person referred to in the application, by the employer of that person or a public body.
Deputy Creed's amendment would require the applicant to produce evidence of negligence on the part of a person referred to in the application, by the employer of that person or a public body. If the amendment was accepted, it would be necessary to resort to the courts and the basis of the legislation would be completely changed.
Subsection 6(1)(c) states:
Where a person who makes an application (an "applicant") for an award to the Board establishes to the satisfaction of the Board that he or she was abused while so resident . . . the Board shall make an award to that person in accordance with section 11(1).
How can the board make a determination of entitlement to an award when the applicant is the only party the board is dealing with, no evidence is heard from the accused and the applicant is not obliged to present evidence?
Section 6(1)(c) makes a preliminary requirement and is merely intended to remove frivolous cases. It requires an applicant to establish that he or she was abused while resident in an institution.
That is fine, but how will the board make a determination if the only person it deals with is not obliged to present evidence?
The board will have to satisfy itself in that regard. It may find that the complaint does not fit into the circumstances of the institution. In that way, frivolous claims will be removed.
I move amendment No. 23:
In page 6, subsection (4), line 36, to delete "any".
I move amendment No. 24:
In page 6, between lines 44 and 45, to insert the following subsection:
"(6) A determination referred to in subsection (3), shall not include a determination of an interlocutory matter.”.
Why does the Minister consider a three year period is appropriate? How long does the Minister think the board will be obliged to continue? The Minister must have some indication as to the number of cases that will come before the board and how long that will take. If it will take more than three years it would appear foolish to bring down the shutter at that point. I know there is provision for certain circumstances.
Yes, there is provision in certain exceptional circumstances but it will be a matter for the board to give a report to the Government and say that it had got so far and more needed to be done. This happened recently with the Laffoy commission which was naturally extended when it indicated that further time was required. However, these matters cannot be left open-ended. A reasonable period must be allowed and three years is reasonable to make the application. There are exceptional circumstances as the Deputy mentioned and they are covered, but beyond that, it is for the board to indicate a need. That is what would normally happen.
Can the Minister estimate how many cases may come before the board?
That may come before it within the three year period?
No, the number of victims that may be out there. It seems that three years is a calculation based on a case being processed.
Three years are allowed to make an application.
I will look at amendment No. 25 even though it is out of order. The Deputy's intention is I think to include a person's partner.
The wording in the Bill seems to straitjacket the types of relationships into which people may enter. We must be cognisant of that.
I accept the general point and will give it further consideration.
I move amendment No. 26:
In page 7, subsection (1), line 22, to delete "one" and substitute "two".
In respect of sittings of the board, it would be logical for an uneven number of people to be present. If a chairperson and just one member of the board sits, there is potential for a disagreement that cannot be resolved. The effect of this amendment would be that an application may be heard before a sitting of the board consisting of a chairperson and at least two other members of the board, so that there would be three people sitting on an adjudication which would be more conducive to a decision being reached.
I appreciate the Deputy's concerns on this matter. While a quorum of three board members for a hearing may be desirable, regard must be had for the board's workload and the absolute necessity that its work be completed without undue delay. If the board were to sit in panels and each panel were to include three rather than two people, this would greatly complicate the process of finding sufficient people with the appropriate skills to carry out the work. I am of the view that two person panels are appropriate and will lead to an effective process.
I remind the Minister that section 5(1) which reads "The board shall consist of a chairperson and such a number of ordinary members as the Minister may determine" leaves open the final number of board members. If the board were to sit in panels of three, there could be nine or 12 members of the board. Uneven numbers would be more conducive to facilitating clear decisions.
We do not want to hold up the process by trying to find sufficient suitable specialised people.
What size membership does the Minister envisage?
Of the board as a whole?
Yes.
It is a matter for the Minister to decide on an adequate number to deal with the work on hand, having regard to how work is developing and what is required. We have not fixed on any number.
Amendments Nos. 27 and 31 are related and may be discussed together by agreement.
I move amendment No. 27:
In page 7, subsection (4), line 26, to delete "At the hearing of" and substitute "When making".
The purpose of this amendment is to streamline the process of award-making and, in particular, to provide for a system whereby awards can be made by way of settlement rather than through formal hearings of the redress board. There will be cases which are clear cut and where both sides can agree, without formal presentations and on documentary evidence alone, that an award should be made and the amount of the award. It is in the interest of the claimants in such cases and in the interests of efficiency that the legislation would not require formal hearings. All settlements will be with the full and informed consent of the applicant who will, of course, have recourse to legal assistance should he or she so wish.
Amendments Nos. 28 and 40 are related and may be discussed together by agreement.
I move amendment No. 28:
In page 7, subsection (4), line 26, after "applicant" to insert "or his/her agent".
This amendment is self-explanatory. We must remember that many of the victims or applicants to the board were denied a proper and appropriate education by the State. An applicant's agent should also be entitled to present evidence.
While I understand the Deputy's objective, these amendments are unnecessary. Each claimant can be legally represented if they wish and, under amendment No. 79, their legal expenses will be met so the position is covered. That is a matter about which people can make up their own minds. If one has a matrix into which one fits reasonably well, there is no point incurring unnecessary legal expenses but expenses are available for legal representation if that is required.
Do I take it we are proceeding with a matrix system?
The Deputy mentioned the matrix earlier but I do not know what system will be used. If there is a matrix, a range or whatever else, people may wish to argue their position in that context or may be happy to settle for what is allocated or agreed. If they wish to have legal representation, that is provided for. I have no knowledge of what the system will be.
I move amendment No. 31:
In page 7, subsection (5), line 32, after "applicant" to insert ", as he or she determines,".
I move amendment No. 32:
In page 7, between lines 35 and 36, to insert the following subsections:
"(6) For the purposes of establishing the matters specified in paragraph (a) to (d) of subsection (4), the Board may on its own behalf or at the request of an applicant, request, by notice in writing, any person to produce to the Board or to the applicant any document in his or her possession, custody or control which relates to such matters.
(7) A person to whom a notice under subsection (6) is addressed shall provide the Board with the document specified in the notice if it is in the possession, custody or control of that person.”.
This addresses the obstacles a claimant may face in establishing the essence of a claim. An example might be a situation where a claimant cannot establish that he or she was in an institution, but knows where documentary evidence can be found and the person who has it is reluctant to hand it over. This provision will assist the claimant in such a case.
I move amendment No. 33:
In page 7, subsection (6), line 36, to delete "may" and substitute "shall".
The effect of the amendment would be that each application would have to go to a full hearing. However, in amendment No. 36, I propose that applications can be dealt with by way of settlement to allow for the quick resolution of uncontested cases. A hearing in each and every case would not be necessary.
Uncontested leaves out part of the equation, that is, those against whom accusations are made. In circumstances where third parties are notified, a hearing would be desirable, which is the import of this amendment. In the interests of due process and fair procedures, those against whom accusations are made may waive the right to be notified and give his or her side of the case.
If the system works as we hope, there will be a range of settlements and people can accept what is appropriate for them. This worked successfully in the Stardust case originally. Many such cases were uncontested by the applicants. In this system, the experts will assess the claim on the basis of the injury and if the applicant accepts that, it is uncontested.
One element is still missing.
Does the Deputy mean the people outside?
Yes.
I appreciate the point. That is a fundamental issue we discussed at length.
We did not make much progress on it.
I move amendment No. 36:
In page 9, before section 11, to insert the following new section:
"11.—The Minister may make arrangements to provide for the settlement of an application to the Board.".
The purpose of the amendment is to provide for settlement of claims. There will be cases where there is no dispute as to the essential issues and, in such cases, it would be unreasonable to require that they undergo full hearings, which would be a waste of time and resources. Claimants would be legally represented throughout the process.
I move amendment No. 37:
In page 9, subsection (1), between lines 10 and 11, to insert the following:
"(a) the evidence adduced at a hearing, if any,”.
The amendment allows the board to have regard to any evidence given to it at a hearing which determines the amount of the award. There may be circumstances where a claimant would want to give additional evidence to that provided in the experts' report and this provides for that.
I move amendment No. 38:
In page 9, subsection (1), line 15, to delete "injuries referred to in section 6(1)(d)” and substitute “referred to in paragraph (b)”.
This amendment enables the board to hear the evidence of its advisers and those of the claimants in relation to the report which the board's advisers have drawn up. It is a refinement of the hearing process which gives additional protection to the claimant.
Amendments Nos. 41, 44, 46, 51 to 63, inclusive, 65, 67 to 69, inclusive, 73, 74, 80 to 86, inclusive, 90 and 98 are cognate and may be discussed together.
I move amendment No. 41:
In page 9, subsection (4)(b), line 28, to delete “Review Committee” and substitute “High Court”.
The thrust of the Minister's proposal is that victims of abuse, in so far as it is possible, be accommodated by a non-adversarial process in which the bulk of the resources available for compensation goes to the victims rather than to their representatives or in legal costs. That is a desirable starting point, but to propose that a review committee be established, as a safety net, is a step too far. Where the applicant for compensation is dissatisfied with the board's findings, he or she should have a right to appeal the decision not to a review committee, which is an internal ad hoc formula envisaged by the Bill, but to the High Court.
The Minister referred to meetings he had with representatives of victims and that they were satisfied with some provisions. All representatives of victims want the awards to be commensurate with the level of High Court awards. Even after this Stage, we will not know the level of compensation envisaged by the committee established by the Minister or how much money will be contributed by institutions in which abuse occurred. If one accepts the point that the informality is more beneficial to victims, then the safeguard for the level of compensation is the High Court, where the obligation will be to deliver it commensurate with ordinary cases before it.
The Minister let the cat out of the bag when he referred to matrices——
The Deputy referred to matrices and I simply disagreed with him.
We are being asked to buy a pig in a poke in respect of the level of compensation. We do not know the colour of the Minister's money or what contribution will be made by CORI. The safety net required to make sure these compensation levels are commensurate with High Court awards is the right of appeal to the High Court and not to an internal quango, namely, a review committee, as envisaged by the Minister.
The short answer would be that the review committee is the appeal process. It is important to provide an appeal process which will be separate and independent. Section 12(5) states the review committee and its members shall be independent in the exercise of their functions. It is an independent review committee and it will be chaired by a judge or senior legal person appointed by the Minister. This gives us the equivalent of an independent body which can take into consideration any of the findings anywhere else or whether it is a reasonable situation or not. On a more formal note, the Bill provides for an appeal by a claimant against an award through a review committee. The appeal will be a full examination of the claim.
I do not agree that given the nature of this proposed compensation scheme it would be appropriate to involve the High Court in reviews of awards as these amendments propose. One of the primary objectives of the scheme is to remove the issue of compensation from the formality and time-consuming procedures of the higher courts. As I pointed out on Second Stage, involvement of the court in this scheme would blur the distinction between formal court proceedings and the compensation scheme and significantly dilute one of the main benefits of a compensation scheme, namely, expeditious resolution of claims. The scheme as it stands gives survivors of abuse, who would experience significant delays and uncertainties in civil litigation, a quick and effective alternative. This will have none of the formal panoply of the court.
Further, the level of inquiry made by it into the facts of a person's history will be considerably less onerous, as will their cross-examination. In the circumstances having this scheme stand alone outside the normal litigation process is the appropriate approach to take. It also has to be borne in mind that where an applicant is unhappy with the level of an award, or where an award is not made, the option of an action in the courts remains open to him or her. Thus a claimant can access the redress scheme up to the point where an award is determined, abandon it then and pursue his or her case through the High Court. The Deputy will appreciate that if a claimant is not happy with the award being made he or she can then refuse it and go to the court instead.
Only if they have lodged their case in court.
Essentially this is providing an independent review and appeal system overseen by a judge or a person at a senior legal level.
Is it implicit in what the Minister has said that the request from representatives of victims that awards be commensurate with levels of awards made in the High Court will not be realised through this legislation?
Awards in the High Court can be very different. The Deputy mentioned a case earlier where an award was very low.
But there are minimum levels awarded in the High Court if a case is won.
Naturally the expert group will take that into consideration.
In denying access to the High Court is the Minister not implicitly saying that the level——
We are not denying access. A person can take either route.
One can only take that route if one has already lodged one's case in the High Court.
I understand that is not so.
Does the Statute of Limitations entitlement not expire?
In any case of physical abuse the statute does not expire.
This is further evidence of the point I made earlier that we should not be considering Committee Stage at all because there are so many outstanding issues. The critical issue is that victims have pointed out repeatedly that they want levels of awards that are commensurate with High Court levels of awards. That is not unreasonable. Already we have uncertainty as to who is entitled to an award and uncertainty as to due process and the right of the accused to present their side of the argument. Also, because this issue has been farmed out to a committee we do not know the levels of compensation. It is understandable that victims are asking that this go through as quickly as possible so they can get paid, but there is a danger that unless the Minister yields on the right of appeal to the High Court the review committee established to deal with this matter will bring forward levels of award which are less than High Court awards. Surely the only appropriate safety net in that regard is to have the report here now so that we know what is on offer or to provide access to the High Court.
Amendment No. 39, which was ruled out of order, was asking for this legislation to cover loss of earnings. The High Court has ample experience in determining entitlement on that matter. This is just another of the reasons we should not proceed with Committee Stage until we know the levels of compensation being proposed. In the absence of those guarantees I wish to pursue this amendment which would give the right of appeal to the High Court.
I cannot do much about how the Deputy feels about it. This is a good system with an appeals system within it. It will be under the Judiciary or senior legal people. It is a good and efficient arrangement. It is a fact that we are proceeding in parallel with the expert group but everybody accepts the independence and appropriateness of the people we have put on the committee and will hopefully accept whatever scale of awards it sees as appropriate. I cannot do more than that. I have to believe in somebody. I know the Deputy pointed out that he is entitled to be sceptical and I accept that. I must trust the expert group or I can do nothing and I believe it will come up with a well thought out procedure. That will be available on Report Stage, or if not will have to come before the House. I cannot see what direction to go if we do not agree with an independent group of experts who will consider what is being awarded currently in the High Court and other countries before coming up with a suitable scale.
Is the Minister saying the expert group will take into account what is being awarded in the High Court?
I would say they will. That would be natural though not so easy because awards are so variable.
In the absence of the report this amendment is the obvious necessary safety net. When does the Minister expect that report? Did he indicate that it might be ready before Christmas? If the report on the levels of compensation was available early in the new year we might be in a position to take up the matter when we resume.
It is expected in early January and will be available for Report Stage.
Given that it is now 4 o'clock and we are about to conclude perhaps we should resume on this in the new year rather than dividing now. We will have the report then and will know the colour of the Government's money and will be in a position to decide on the matter.
I would rather we put the issue now because we have discussed it at length. The Deputy is trying to delay the Bill.
No, this is critical. It is interesting that the Minister is now anxious to close off access to the High Court before we see the colour of the money.
I am not in favour of having a dual system. I do not see how that will operate.
If we have the report before us, we will at least know the levels of compensation. If the report proposes levels of compensation which are agreeable to the victims, it is better to have that information so that we can make a decision on that basis.
Given that it is Christmas, will the Deputy allow those people to go home as Committee Stage is concluded and they have time to discuss——
The Minister will not conclude Committee Stage anyway.
We will discuss this and come back with the final proposals.
We are only half way through the list of amendments.
Can we dispose of amendment No. 40?
The Minister is portraying this as if everybody has a choice. If they do not like what the redress board offers, they have recourse to the High Court. That is not actually the case. People who suffered physical abuse are statute-barred from taking an action in the courts. People who were sexually abused had to avail of the extension of the statute of limitations and they had to submit their cases before last June. A very considerable number of people will not have the option of the courts. In relation to those who suffered sexual abuse, will the Minister give an undertaking not to make a claim regarding the statute of limitations in cases that may have been lodged since last June? It would not require legislation but a goodwill offer could be made that the State would not make a claim under the statute of limitations in those cases.
I want to see the report before we decide whether the Minister will close the door on access to the High Court for levels of awards. We must see that report before we proceed with Committee Stage.
That has nothing to do with the level of award.
Of course it has. We will propose an amendment that will give them rights to the High Court if what is in the report is not adequate.
That has been the intention from the beginning and it has been drawn out through the day. I do not mind staying here longer——
That comment is facetious in the extreme and the Minister knows it. He has come in totally unprepared for Committee Stage.
In the spirit of Christmas, as it is now 4 p.m. we must adjourn. We will continue consideration of the Bill at a later date. I suggest we try to agree suitable dates now.
I will make myself available on Tuesday.
Will we have the report we are talking about on Tuesday?
The report of the expert group?
Yes.
As of yesterday, it will be available in early January.
It would be more appropriate to resume in early January. The Minister will not be able to take Report Stage until the Dáil resumes and he knows that. The Minister should not play to the gallery. He knows that Report Stage in the Dáil will not be until after 31 January. That gives us plenty of time in January to consider this in detail. We will also then see that report.
I do not see how that affects it.
The Minister will have to decide whether to deny them access to the High Court on appeal.
We are not denying anyone access to the High Court.
The Minister is doing so.
We are not.
Is there agreement on next week?
I would prefer to see the report. Report Stage in the Dáil will not start until after 31 January anyway.
I am aware of that.
If the Deputies do not want to discuss it next week, I cannot do anything about it.
That is the cheapest shot we have had all day.
An accusation is being made that we are trying to delay the legislation. That is nonsense.
I suggest 15 January.
Committee Stage would be finished before the Dáil resumes and we would also have the Minister's report by then.
I am available any time on 15 January. I want this Bill to go through and I want those people to have the benefit of it and to know where they stand. There is no logic in the statements the Deputy is making.
That is the cheapest shot. The Minister wants to get it out of the way now because he wants to close off the door of High Court appeal.
I do not.
It is very obvious that the Minister does.
Does Tuesday, 15 January, at 2 p.m. suit everyone?
I suggest we start at 11 a.m. and make a proper day of it.
Will the Minister give a commitment that the report of the expert group will be available? He indicated that it will be available in early January.
I am in the hands of the expert group.
Will we have the report before we meet?
That is what I have been told.
Perhaps the Minister could inform the expert group that we are anxious to have the report when we resume Committee Stage.
I will not interfere with it.
I bet my bottom dollar that the Minister will make sure it will not be available so that we will have to make a decision in a vacuum.
If every Deputy here wants to make a decision on what the awards should be, then we are in for a long haul. That is why we set up an independent body to bring forward proposals.
Deputy Shortall suggested 2 p.m. Is that agreeable?
The Deputies opposite have decided.
The Minister does not even have a Government colleague here today.
There is one here.
Perhaps the Minister could give a commitment that he will finalise his thinking and negotiations with outside bodies in relation to the two substantial issues we discussed earlier.
I will try to do that.
I thank the members for their attendance.
I wish the Deputies on the other side a happy Christmas.
