SELECT COMMITTEE ON EDUCATION AND SCIENCE debate -
Tuesday, 17 May 2005

Commission to Inquire into Child Abuse (Amendment) Bill 2005: Committee Stage.

Section 1 agreed to.

SECTION 2.

Minister for Education and Science (Ms Hanafin)

I move amendment No. 1:

In page 5, after line 30, to insert the following subsection:

"(2) In this Act—

(a) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended, and

(c) a reference to any other enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or adapted by or under any other enactment.".

The purpose of amendment No. 1 is to outline fully the general interpretation section of the Bill which contains only one definition. According to the definition, where the phrase "Principal Act" is used in the amending legislation, it is to refer to the Commission to Inquire into the Child Abuse Act 2000. Outlined in the amendment is what is meant by references to "subsection","paragraph" and "subparagraph".

Amendment agreed to.

Section 2, as amended, agreed to.

NEW SECTION.

Ms O’Sullivan

I move amendment No. 2:

In page 6, before section 3, but in Part 2, to insert the following new section:

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

The substance of the amendment is the transfer of responsibility for the legislation from the Minister for Education and Science to the Taoiseach. I emphasise no aspersion is being cast on the Minister for Education and Science. This is a Department which is responsible for the commission investigating child abuse. It is very closely involved in the substance of the issue being investigated. We believe this is not appropriate. Another Department should take responsibility, considering that the Department of Education and Science is an integral part of the investigation. We suggest it should be the Department of the Taoiseach which we have selected because it is headed by the leader of the Government. It was the Taoiseach who made the apology to the victims of abuse initially on behalf of the nation. Therefore, his is the appropriate Department to take responsibility.

When Mrs. Justice Laffoy resigned from the commission, she wrote a letter outlining her reasons which were subsequently published as part of a series of correspondence between the judge and the Department of Education and Science. In her letter of resignation she pointed to issues such as the failure to provide resources and to respond to issues she had raised about the fact that the commission could not do its work effectively within the expected timeframe. She said it could not be done effectively in the interests of both the survivors and those being accused to ensure closure and the making of reports in a timely fashion. She also specifically brought up the fact that she felt the commission was not being facilitated by the Department in its requests for information and discovery of documentation she was seeking from it, a matter about which she spoke strongly and to which she pointed as one of the issues with which she had had a difficulty in completing the work of the commission which she chaired.

We have tabled the amendment because the Department is directly involved and of the difficulties Mrs. Justice Laffoy encountering in obtaining information from it and in seeking a commitment on resources, which she was adamant the commission needed to carry out its work. It is not appropriate that the Department should continue to be the one responsible, both for the legislation and also for the resources the commission requires to complete its work.

Ms Enright

Like Deputy O'Sullivan, I believe this is fundamental to the entire Bill under discussion. Deputy O'Sullivan has outlined some of the comments made by Mrs. Justice Laffoy. Before we even get to her comments, however, it is important to point out again that the Department of Education and Science is being investigated by the commission. A large number of complainants who have come before the commission have serious concerns about the way in which the Department handled their individual cases. We have to get to the bottom of issues as regards what it knew and how it dealt with this information. We know of one individual who was moved to seven day schools in total. He received references before moving on to the next. There are certainly questions to be asked about what the Department knew about that case. There are also issues concerning incorrect information given in reply to parliamentary questions dating back to the 1980s.

From those perspectives and given the serious nature of what has to be investigated, it is imperative that a separate Department deals with these matters. I appreciate that the vast majority of officials involved will have moved on but that in itself does not change matters. The structures within the Department have to be looked at to ensure what happened in the past cannot be replicated in the future.

Mrs. Justice Laffoy was trenchant in her criticisms of the Department. She said clearly that since its establishment the commission had not received the level of co-operation to which it had been entitled from the Department of the State which was its statutory sponsor. It had difficulty in securing compliance from the Department with its statutory requests and directions. We have never received an adequate response or explanation from the Department as regards these serious allegations. Mrs. Justice Laffoy's principal concern was the manner in which the Department complied with directions on the discovery and production of documents. That is a severe allegation from a judge against a Department of State. We must remember that this happened only in recent years. We are not talking about a period 20 or 30 years ago.

Mrs. Justice Laffoy also said that, despite clear indications from the commission that a prescribed form should be followed in dealing with averments from an affidavit in respect of discovery, this had not been adhered to and that she found this unacceptable. She was assured that the issue of resources would be addressed but that did not happen. The final criticism she made was that in responding to the vast majority of allegations which the commission was investigating the Department had not adopted a constructive approach to dealing with its role in the inquiry. Little evidence has been forthcoming to indicate that this will not continue to happen.

While the proposed amendment is not a reflection on the Minister for Education and Science, it is imperative that responsibility is transferred to the Department of the Taoiseach. That is a fundamental matter as regards this legislation.

Mr. English

To add to what my colleagues have said, the objective of the commission is to try to bring to an end the terrible situation that has been ongoing for so long and to end the hurt. We need to ensure this time around it is right and that people have faith and confidence in the system. It does not inspire confidence to say the Department of Education and Science investigates itself. That does not look good from the outside; neither is it satisfactory for victims. I ask the Minister to consider the amendment; I am not sure why she cannot. This is about confidence, trust and justice. People have to believe they will get justice to ease the pain of what happened all those years ago.

Mr. Crowe

I, too, support the amendment. Deputy English has touched on the nub of the issue — the fact that the Department of Education and Science is investigating itself. Concerns have been voiced by the survivor and victim groups about its role. As has been said, the Taoiseach initiated this process with the apology on behalf of the State. It is only right that the amendment should be accepted.

Ms Hanafin

The Department of Education and Science is the correct place for this legislation and the appropriate sponsoring body. We have a good working relationship with Mr. Justice Ryan and the commission. I had a positive meeting with some of the survivor groups, not just as regards the working relationship we can have but also about the level of resources being provided. The Department has accepted some of the criticisms about the difficulties encountered, all of which have now been addressed.

To give some idea of the amount of documentation forwarded to the commission, the Department has supplied 150,000 pages on discovery directions. There were difficulties as regards a small number but, equally, the commission's third report acknowledged that some of these were contributed to by insufficient clarity in the directions as to what was being sought or the fact that not enough time was being allowed for compliance. That said, there are now dedicated officials within the Department working solely on this area.

Any resources sought by the commission have been given to it. We are committed to ensuring we will meet our obligations in this regard also. We will certainly respond to all of its requests towards ensuring the work of the staff of 53 employed in the commission is supported.

As regards costs, a further €21 million has been provided for administration in the Estimates process for this year and the next two years. These are the changes brought about in the last while to ensure we can meet the need identified. In each case where a tribunal has been set up the relevant sponsoring Department remains responsible. The Department of the Environment, Heritage and Local Government is responsible for the Mahon tribunal while the Department of Justice, Equality and Law Reform is responsible for the Barr and Morris tribunals, for example. The Commission to Inquire into Child Abuse is the responsibility of the Department of Education and Science which is the appropriate Department and responding to the needs of the commission appropriately, as is evident from the amount of work, time and resources being devoted to it by dedicated officials.

Ms Enright

The Mahon tribunal's investigation does not concern the workings of the Department of the Environment, Heritage and Local Government. While the Morris tribunal is investigating the activities of gardaí, it is not investigating the internal operations and dealings of the Department of Justice, Equality and Law Reform. This distinction is important.

Without casting a negative light on my previous profession, the first thing one learns about discovery is that if one does not want somebody to find something, one sends him or her as many pages as possible. Having 150,000 pages does not necessarily mean one will find therein the information one requires.

It is not just a question of resources. I accept the Minister's point that further resources have been allocated and that it is intended to allocate sufficient resources to allow the commission to continue to carry out its work. Given that the Department is being investigated, I have an issue with the fact that it is the sponsoring body. Therefore, I want to press the amendment.

Ms O’Sullivan

I accept that there is a good relationship between Mr. Justice Ryan and the Department and that the Department's officials are working on the matter and have the best will in the world. However, issues always arise when a Department is asked to find documents required for an investigation into its own activities, even if those activities were engaged in a long time previously. In the interests of clarity, it would be better if some other body was doing the work of the Department's officials. However, we are not suggesting the work is not being done with absolute integrity. When a body is being investigated, it is not appropriate for it to be in charge of the investigation. This principle should be respected.

Deputy Enright made the point that the other tribunals were not investigating the Departments concerned. In the case of the Commission to Inquire into Child Abuse, the manner in which the Department of Education and Science carried out its work is being investigated. We want to establish the aforementioned principle which is why we will be pressing the amendment.

Ms Hanafin

Given that the activities being investigated did not take place in recent times, it is reasonable to expect the Department with all the information and resources to be allowed to continue with its work on the investigation. We have agreed with the commission the discovery directions for nine institutions which are to be delivered on a phased basis by September 2005. We have complied with four discovery directions of a general nature and ten specific institution related ones. The work is being done.

If circumstances had not changed in terms of the working relationship, the resources being allocated and the work being done, we might be having a different argument today. However, given that the work is progressing well and the fact that we expect it to be concluded efficiently and speedily because of the level of co-operation received, it is correct to allow responsibility to remain with the Department of Education and Science.

Amendment put.

The Committee divided: Tá, 4; Níl, 7.

Tá

• Crowe, Seán
• English, Damien.
• Enright, Olwyn.
• O’Sullivan, Jan.

Níl

• Andrews, Barry.
• Curran, John.
• Hanafin, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• McEllistrim, Tom.
• Moynihan, Michael.

Amendment declared lost.

Section 3 agreed to.

SECTION 4

Chairman

Amendment No. 3 in the name of Deputy Crowe will be discussed with amendment No. 4. Is that agreed? Agreed.

Mr. Crowe

I move amendment No. 3:

In page 6, subsection(1)(a)(i), to delete lines 31 to 34 and substitute the following:

"(ia) will investigate the role of the courts and the executive arm of government which exercised statutory powers under the Children Acts and will inquire into the manner in which children were placed in, as day students or residents, and the circumstances in which they continued to be students or residents in, institutions during the relevant period,’”.

There are two reasons for tabling these amendments, the first of which is to include the role of the Government and the courts in the cycle of events that led to children being systematically abused in homes and schools. The former Minister for Education and Science, Deputy Woods, promised that everything except the courts would be open for examination by the commission. The Bill, as currently laid out, backtracks on this commitment.

The State has responsibilities and its failure to look after children in its care must not just be acknowledged but also investigated in detail. It is one matter to give assurances here but the work of the Laffoy commission showed that the Department of Education and Science was stalling on this issue as well as delaying access to documentation. This is just one example. We have an opportunity to make it clear that the Government and the institutions have to play a full role in the commission's work. The best way to achieve this is to state it clearly in the Bill. The manner in which it is stated is worrying and leaves the door open for more years of backsliding and the avoidance of responsibilities.

Ms O’Sullivan

I want to discuss amendment No. 4 which is similar in some respects to Deputy Crowe's amendment in that it is designed to achieve the same end. The legislation seeks to inquire into the manner in which children were placed in and the circumstances in which they continue to be resident in institutions for a relevant period. I do not believe this is clear enough. Mr. Justice Ryan said in May 2004 that the commission ought to examine the role of the courts in placing children in institutions.

The wording of the legislation is not as precise as I would like it to be in terms of actually including the courts. I do not see any obstacle as regards including them and the institutions involved in the placing and keeping of children in institutions which continues. It is most important that the Bill is as wide as possible and that it includes the activities of the courts which were obviously directly involved in the taking of children from their parents, in some cases with absolutely no justification, and placing them in institutions.

Ms Hanafin

One of the primary functions of the commission is to conduct an inquiry into the abuse of children in institutions, ascertain why it occurred and who was responsible. The mandate includes establishing as complete a picture as possible, the causes, nature and extent of the physical and sexual abuse of children in institutions and other places during the period from 1940 to the present day. Clearly, both the Executive and the courts had a role in the placement of children in institutions. The ability of the commission to report on this role is adequately provided for in the Bill. For that reason I do not propose to accept amendment No. 3.

As regards Deputy O'Sullivan's proposal, amendment No. 4, there is a difficulty and a danger in seeking to single out individual judges in this manner. Apart from the lapse of time and the difficulties in establishing the facts because of this, the independence of the Judiciary is recognised at a constitutional level. Acts and words spoken by a judge in his or her capacity as a judge are privileged. Were the commission to inquire into the manner in which judges exercised their duties, it would substantially interfere with their independence and this privilege. Therefore, I do not consider it appropriate to accept the amendment.

The focus of the inquiry will be on the general operation of the system rather than on the decision taken in a specific case. It should look at the circumstances in which children were detained and the manner in which they continued to be detained within those institutions. Mr. Justice Ryan was satisfied that the wording in the Bill would enable him to do just that without being prescriptive in regard to the executive or the courts.

Ms O’Sullivan

Will the Minister elaborate a little on what Mr. Justice Ryan hopes to achieve in this area, assuming that he is satisfied with the wording of the proposed legislation? Does he intend to look into the general operation of the courts? My amendment does not refer to individual judgments but to the general way in which decisions were made by the courts at the time and the kinds of criteria used in deciding that a child should spend up to five years or more of their childhood in a residential institution away from their parents. Clearly that is an important part of the investigative process. Perhaps the Minister will elaborate on what Mr. Justice Ryan has in mind.

Ms Hanafin

While it would not be appropriate to speak on behalf of the judge, it is my understanding that he believes this wording would allow him to investigate all the circumstances surrounding the placing of children in schools or places of detention, namely, the operation of the courts at the time, the legal system that pertained at the time, society generally, the economic situation and whatever else he deems relevant. He is satisfied that he can do this with the proposed wording and that would also be his intention.

Mr. Crowe

Given the Minister's assurance that the judge will investigate the role of the courts and society, I will not press the amendment. The proposed legislation does not appear to make that provision, however.

Amendment, by leave, withdrawn.

Ms O’Sullivan

I move amendment No. 4:

In page 6, subsection (1)(a)(i), line 34, after “period,” to insert the following:

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

I will not press the amendment but reserve the right to reintroduce it on Report Stage. I accept what the Minister said.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 5, 6, 10 and 12 are related and will be discussed together, by agreement.

Ms Enright

I move amendment No. 5:

In page 6, subsection (1)(a), between lines 37 and 38, to insert the following:

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

The Bill is a significant change from the 2000 Act. When the Taoiseach made his promise and the commission was originally set up people believed things would work in a particular way. Changes must be made as a result of the reports of Ms Justice Laffoy and Mr. Justice Ryan. I want to ensure that the changes made will give the victims the greatest possible opportunity to have their cases heard. I also want the public to be informed on how decisions will be taken in terms of the operation of the commission. The Bill does not make provision for that.

The 2000 Act is being amended to remove the obligation on the investigation committee to hear all complaints and it gives discretion as to which witnesses it considers should be called to a full hearing. Where cases do not proceed to a full hearing this should be on the basis of clear and objective criteria decided in consultation with the representative groups. It is asking a great deal to take it on good faith that it will be done.

At the end of the day Mr. Justice Ryan will make the decisions. I would like to know, as would the victims and the public, the criteria on which his decisions would be based. That is not outlined in the legislation and it is important that this is clear. Likewise the judge has the option of deciding which cases should not proceed to a full hearing. The reasoning behind such decisions should also be made public so that people would be clear that the process was carried out in a fair and objective manner.

Amendment No. 10 relates to the meetings which will be held in public. The criteria for deciding which meetings are to be held in public should be agreed with the representative groups and this should be published and made available to the public. Again, this is to ensure that the judge's reasoning is fair and that the necessary balance is struck. That is necessary from the victims' perspective and in terms of having a fair process for everybody concerned.

Regarding amendment No. 12, a significant change is proposed in the Bill. According to the 2000 Act, the function of the commission was to provide for persons who had suffered abuse in institutions during the relevant period an opportunity to recount the abuse and make submissions to the committee. It is now proposed that: "As far as is reasonably practicable, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse and other relevant experiences undergone by them in institutions." No definition is provided in the legislation for what is meant by "reasonably practicable". If everyone in the committee was asked what he or she thought that meant, I am sure we would all come up with different ideas. It is important that this is clarified and that a definition is provided.

Ms O’Sullivan

I support these important amendments. It is clear that a major change is proposed to the legislation. In the original commission's work people could tell their full story to the investigative committee. That power has now been transferred to the commission to decide which stories are to go to full testament. If that is the case, it must be done with the full agreement of the representatives of survivors and victims and with the maximum amount of public information as to why certain decisions are made.

Ms Hanafin

When Mr. Justice Ryan reviewed the workings of the commission he deliberately avoided imposing selection criteria for cases that would receive a full hearing before the investigation committee. He felt that it was not possible to develop specific criteria and that it would be invidious to do so. He also said that one could not presume that the same criteria would apply across all the institutions because each one is different.

The commission has proposed that it will interview each person who has decided to continue participating in the inquiry by the investigation committee. This process has already commenced. The amendment to section 4(6) will allow the investigation committee to select cases for full hearing, as required, to enable a full and comprehensive inquiry into abuse in the various institutions. If set criteria were to be laid down, it could restrict the inquiry in its work rather than allow it the flexibility to decide in regard to a particular institution how many or on what basis it would want to conduct hearings for the purposes of getting a full picture. It is for these reasons that I do not propose to accept amendments Nos. 5 and 6.

Regarding amendment No. 10, the purpose of section 6 is to allow the investigation committee to hold meetings in public. It will also be able to hold joint hearings which can be attended by survivors and their representatives, and respondents and their representatives. In both cases, the investigation committee will be entitled to work in this way whenever it considers it appropriate. To require it to agree the criteria for holding public or joint hearings with representative groups would undermine the independence of the committee and limit its discretion which it must still, by law, exercise in a reasonable manner. I must therefore reject this amendment.

In regard to amendment No. 12, section 7 is intended to allow the investigation committee to call before it people whose accounts it considers will provide it with the greatest possibility of arriving at the truth of what occurred. That gives the commission a great deal of discretion in regard to the people it calls and in carrying out its functions. There are likely to be complainants whose allegations are incapable of leading to a finding of abuse. Requiring the investigation committee to agree in advance the circumstances in which this would arise would be an impossible task and one which would hamper its work and its independence. I do not propose to accept this amendment. Giving the commission flexibility will allow it to get the fullest possible picture.

Ms Enright

Regarding amendments Nos. 5 and 6, I do not see the logic behind the idea that it is not possible to develop criteria. Surely, whenever Mr. Justice Ryan reaches a decision, he must have regard to some criteria, even if they are only in his head. He cannot simply pick and choose in a willy-nilly fashion what he will do. While criteria are required, I do not call for them to be so rigid as to exclude anybody. Simply because criteria should be flexible is no reason to fail to outline at least the broad thinking behind what will or will not exclude a person or allow a matter to proceed to full investigation. Whatever cases come before him, Mr. Justice Ryan must have some method according to which to decide whether a matter will be the subject of a full hearing. To include criteria in the Bill is the fairest approach. It will give people the opportunity to ensure they have been dealt with properly by the commission.

Speaking to amendments Nos. 10 and 12, the Minister repeated her comments about the undermining of the independence of the commission. I do not see how we can undermine the commission's independence through the Bill. Its role is clearly defined in legislation and while it is independent, it has a duty to operate according to the terms of the legislation enacted by the Oireachtas. To set out the manner in which it should do its work is not to undermine the commission's independence. We are not asking it to do anything which would undermine its independence, we seek simply to ensure decisions on whether cases will be considered in public are made according to clear, transparent and fair criteria.

Ms Hanafin

The point has been made that every person who has decided to continue to participate will be interviewed. It is on foot of interviews that it will be possible to determine whose cases should go to full hearings. It is this which provides the commission with flexibility. Setting out too specific criteria might compromise that flexibility, given that every institution was different, while being too broad would be of no use whatsoever. At least the provisions as set out provide the commission with the flexibility to make decisions on foot of individual interviews.

Ms Enright

Based on what?

Ms Hanafin

Based on what they hear and what angle or approach it is required to follow to get the full picture of an institution.

Mr. English

That is not good enough for victims. Is this process not intended to provide closure for those who were hurt? The aim of the commission should be to help victims, but that will not be achieved if people are not satisfied their cases were not fully explored and their stories told. No one knows how cases will be chosen or rejected, which is not good enough.

Ms Hanafin

Most people want findings to be based on the evidence provided.

Ms Enright

A promise was made that people would have an opportunity to go before the investigation committee if they so wished. The Bill, however, provides that people will not necessarily be allowed to go before the investigation committee but will have hearings at which Mr. Justice Ryan will decide whether their cases will proceed. We are making this significant change without giving an indication of the criteria on which Mr. Justice Ryan will make his decisions. It is unacceptable.

Ms Hanafin

I understand decisions will not be based simply on what has been heard at an interview. All information will be gathered and circulated back to the respondents.

Ms Enright

No criteria will be included in the Bill according to which a decision will be made, however.

Ms Hanafin

Decisions will be based on the information Mr. Justice Ryan has gathered. The provisions represent an effort to be inclusive rather than overly prescriptive. Where a small institution is involved, there might be an opportunity to hear everybody, but that may not be the appropriate approach in the case of a large institution if the necessary information can be obtained.

Ms O’Sullivan

While a person might feel very strongly that what they have to say is important, Mr. Justice Ryan and his commission might decide with good reason that they will not hear him or her in a full hearing of the investigative committee. It may simply be the case that the commission has heard similar evidence from somebody who suffered the same abuse. If the person concerned does not know the general criteria on which commission decisions are based, he or she may deduce that his or her hurt is not important. Whatever else we do with this legislation, we should ensure people are not left with the feeling that a failure to ask them to tell their full story does not mean the abuse they suffered was not significant. If general criteria were outlined, a person might be able to understand that he or she was not being asked to tell his or her full story because the commission already had a general picture of the kind of abuse he or she had suffered. The survivor needs to know why he or she is not to be called to provide a full testament of what happened.

Ms Hanafin

It is not intended to cause hurt to anybody or make anyone feel one story is less important than another. It is for this reason that individual interviews are important and will continue. While the commission may decide it does not need to hear everybody involved to get a comprehensive picture of abuse at an institution, it should be able to get as complete a picture as it can from as many people as it can. The commission will gather the information and provide it for the respondents. If issues are in dispute subsequently, they will be settled at further hearings.

Mr. English

Not only are the provisions confusing for us, but we will pass them as legislation for others to try to work out what criteria will apply.

Ms Hanafin

The Bill states quite clearly that every one of the approximately 1,300 people who decide to continue with the process will be interviewed by a member of the commission's legal team. The information from the interviews will be gathered and produced in a report which will be distributed to the respondents and relevant bodies for discussion and comment. If disputes arise, matters can be further investigated.

Ms Enright

Is that process outlined in the legislation?

Ms Hanafin

No, it is contained in the programme of work which Mr. Justice Ryan published.

Ms Enright

It is open to change if Mr. Justice Ryan decides to operate in a different manner. We do not have clarity for those who come before the commission about how it will operate. I am reminded of the difficulties Ms Justice Laffoy had which were not related to the provisions of the 2000 Act, but to procedural issues which arose in the course of her business. In essence we are hoping Mr. Justice Ryan will conduct the commission in the manner outlined by the Minister rather than setting down in legislation what should be done, which is the proper way to proceed.

Ms Hanafin

Mr. Justice Ryan has indicated that he will probably be able to provide full hearings for everyone who was resident at a smaller institution. It is in respect of larger institutions that he will follow the procedures outlined.

Ms Enright

It is not enough for us to enact legislation on the basis of probability. We must have matters tied down or provide a clear indication of how the process will work.

Mr. English

It is open to respondents to appeal if they feel their information is not included. In those circumstances, I suspect most people will appeal as everyone would like his or her case to go to a full hearing. Would that not bring us back to square one?

Ms Hanafin

We have provided that if there are areas of dispute, the commission can arrange for further investigation.

Mr. English

I suspect most people will appeal.

Ms Hanafin

Not necessarily. Given how traumatic these matters are, not everyone will want to move to a full hearing after being interviewed.

Mr. English

They should be given the choice. While we cannot address the issue as amendments are not being accepted, people should be allowed to make the choice for themselves rather than have it made by us or anyone else.

Ms Hanafin

That takes us back to the previous meeting. If the Deputy continues to go down that road, we will be here until 2011, by which time many of those involved will not have survived long enough to have their cases heard. By taking the approach outlined, Mr. Justice Ryan will be able to establish a comprehensive picture. The current provisions provide the commission with the flexibility it needs to carry out its work while keeping in constant contact with respondents. They avoid being too prescriptive on criteria as different ones will apply to different institutions depending on the evidence gathered in interviews and from other research.

Mr. Crowe

On Deputy O'Sullivan's point, the worst case scenario would be if someone making his or her statement was told by the judge that he or she had already heard similar stories concerning the same institution and consequently did not need to listen to that statement. Criteria must be established in this regard. People attend to tell their stories and would be devastated if they were rejected. They want to gain an understanding of what happened. Clarity is needed. Will the Minister reconsider the matter before Report Stage? It needs to be re-examined.

Ms Enright

I am prepared to withdraw the amendment until Report Stage if the Minister reconsiders the issue and puts in place criteria in order that the people concerned will know the basis of decisions.

Ms Hanafin

Mr. Justice Ryan is anxious to be allowed flexibility to be able to deal with institutions in different ways.

Ms O’Sullivan

With respect to Mr. Justice Ryan, we are talking about people whom the authorities have wronged deeply. We are talking about a shift of power from the individuals appearing before the commission to the figure of authority who happens to be Mr. Justice Ryan. A fundamental issue arises in respecting the equality of people. It might suit Mr. Justice Ryan to have flexibility but he is not the only person we need to consider. I know he must produce a report but we must consider that we are dealing with people who were let down by authority figures in the past. Their lives were ruined by figures of authority who were supposed to know what they were doing.

Since we are dealing with child abuse, we need to be particularly sensitive to people's feelings if they are told there is no need to hear everything they have to say and that there is a need to hear what others have to say. I support what the other Deputies have said and would like the Minister to reconsider this issue before Report Stage.

Ms Hanafin

I understand the Deputies' points of view. The process is designed to help the survivors and investigate what happened. We must also ensure this can be done in an efficient way. Survivors are helped through the interview process, in which everyone will be interviewed. When dealing with people afterwards and determining whether a full hearing involving cross-examination will be needed, much sensitivity will be required. While I agree absolutely with the Deputies on this point, I am not sure it needs to be set out in legislation.

Mr. English

When we pass this legislation, it will have left our hands. With the people we would like to know exactly how it will operate. How can we pass it otherwise? We are not happy that people are being selected as it is. If they are to be selected, let there be proper, straightforward criteria that they can understand and accept before the process begins. Thus, they will know why certain decisions are made.

Ms Hanafin

As Deputy Enright moved the amendment, she is free to deal with it as she wishes but I will certainly try to obtain further information. The commission would be happy to brief members of the committee in the interests of clarity.

Ms Enright

I have no objection to being briefed by the commission or the Department. However, what I or anybody else is told does not really matter. It is the content of the legislation that matters. As it stands, it is vague. Decisions are being left to Mr. Justice Ryan or his successors. That is not a suitable way of proceeding and I cannot accept it. If the Minister is not prepared to reconsider her position, I will have to press my amendment.

Ms Hanafin

I am not in a position to list criteria because my doing so would go against the spirit of what we are trying to do through the commission. While I can certainly obtain further information, I am not sure it will result in the acceptance of the amendment on Report Stage. I do not know what benefit it would be to the Deputy.

Amendment put.

The Committee divided: Tá, 4; Níl, 7.

Tá

• Crowe, Seán
• English, Damien.
• Enright, Olwyn.
• O’Sullivan, Jan.

Níl

• Andrews, Barry.
• Curran, John.
• Hanafin, Mary.
• Haughey, Seán.
• Hoctor, Máire.
• McEllistrim, Tom.
• Moynihan, Michael.

Amendment declared lost.

Ms Enright

I move amendment No. 6:

In page 6, subsection (1)(a), between lines 37 and 38, to insert the following:

"(iv) in this matter, the criteria for deciding which cases may not proceed to full inquiry shall be published and made available to the public,".

Amendment put and declared lost.

Mr. Crowe

I move amendment No. 7:

In page 7, between lines 17 and 18, to insert the following:

"(c) and allow the day students of these institutions who also suffered abuse an opportunity to recount the abuse suffered.”.

We need to recognise that many day students were abused; yet they are outside the commission's terms of reference. Many of the victims have made representations to me and perhaps other Deputies as constituents. Their cases need to be included. It is also important that people from the institutions be given the opportunity to outline their stories.

Someone referred to the difficulty with boarders in cases where the State was acting in loco parentis. There was a greater responsibility on the part of the State to those boarding in such institutions. In this respect, there was an apology from the Taoiseach but we also need to look at the role of the State which transferred responsibility for the care of the children involved to churches and other groups running the institutions. There is still a responsibility towards the children abused.

Many day students were abused by perpetrators who were abusing boarders at night. There is a need and a responsibility to allow people an opportunity to recount the abuse that took place. They are looking to tell their stories and we need to facilitate them as much as possible. Until now there has not been an opportunity for the day pupils concerned to tell them. I hope the Minister will look favourably on the amendment.

Ms Enright

I support the amendment tabled by Deputy Crowe. I had tabled a similar amendment dealing with eligibility of former pupils of day schools to bring their cases to the Residential Institutions Redress Board, but it was ruled out of order because it might have involved a potential charge on the Revenue. We heard a very impassioned speech from Mr. Tim O'Rourke, who had been abused in a day school. The Minister and her predecessors have made the argument about in loco parentis, but while these students were going home to their parents every evening, that does not take away from what happened to them when they were at school. Those were different times and the powers that be were respected and were not questioned to the extent that people in such positions are questioned today.

It is important that day pupils who were victims of abuse are covered by the legislation. The Minister may not be able to deal with the thrust of my amendment under the amendment Deputy Crowe has tabled, but I ask the Government to give deep thought to the issue of abuse. One cannot deal with the issue of abuse by dealing only with those abused in institutional care while ignoring those in day schools. One cannot bring finality to the issue unless everybody is included.

Ms Hanafin

The investigation committee has received complaints of alleged abuse from pupils who were in primary schools. Nothing in this Bill affects the committee's work in relation to day schools. They will adopt the same approach to the hearing of those complaints as they do to complaints received about institutional cases. Those who were abused in day schools will be invited for interview by the investigation committee's legal team. It is not necessary to accept this amendment.

Amendment, by leave, withdrawn.

Section 4 agreed to.

SECTION 5.

Chairman

Amendment No. 8 has been tabled by Deputies Enright and English. Amendment No. 9 is an alternative and amendment No. 13 is related. Amendments Nos. 8, 9 and 13 will be discussed together. Is that agreed? Agreed.

Ms Enright

I move amendment No. 8:

In page 7, lines 30 to 32, to delete all words from and including "but" in line 30 down to and including "abuse," in line 32.

Section 5 of the Bill is a significant change from the provision in the original 2000 Act. The alleged abuser will be identified only if she or he has been previously found guilty of an offence in respect of the abuse. I raised this matter on Second Stage, but in the Dáil the Minister speaks before everybody else so I did not get clarification on it. I tabled this amendment to ask the Minister to outline the reasoning behind the amendment so that we would have a greater outline of the reasons they have taken the big step to name somebody only if he or she has been found guilty of an offence.

Ms Hanafin

Section 5(a) of the Bill as published amends the original Act of 2000 so as to limit the discretion of the commission in naming individual perpetrators of abuse. On the advice of the commission and the Attorney General, I am proposing amendments Nos. 9 and 13, which in effect will limit the commission’s discretion to naming only those persons who have been convicted of an offence in respect of child abuse, be it the particular case of child abuse investigated by the commission or another incident of child abuse. The purpose of amendments Nos. 9 and 13 is to enlarge the scope of the discretion of the commission to name abusers in respect of specific incidents.

The Bill, as currently drafted, would preclude the commission in making findings against a person who was found guilty of abuse in circumstances where the allegations before the commission cover a factual matter and not the subject of the conviction. Situations may arise where a member of a religious order who was convicted or pleaded guilty to abuse has also admitted to other incidents of abuse. Such incidents of abuse cannot be the subject of express findings because of the current wording of the Bill so the commission has recommended this amendment.

This issue has been examined in considerable detail by Mr. Justice Ryan in his review of the commission and he has looked at how child abuse inquiries in other countries have dealt with the issue. The amending legislation proposed is in accordance with Mr. Justice Ryan's carefully thought-out recommendations on the matter which, I should add, have been published and discussed in detail with the various interested parties. The issue goes to the heart of what the commission inquiry can and should achieve. In essence, Mr. Justice Ryan is of the view — it is a view supported by the Government — that the commission inquiry should focus primarily on the wrong or malfunction in the system and not on the individual wrongdoer. It should determine what happened and why on a general level, rather than making findings of abuse in individual cases. Assigning blame or guilt for a specific case of abuse is best left to a criminal trial and doing so in the commission inquiry could prejudice criminal proceedings.

Mr. Justice Ryan has also highlighted the very difficult procedural implications which a policy of naming individuals would have for the commission. In effect, it would transform every case before the investigation committee into a mini-trial and, with 1,300 cases listed, it would take approximately 14 years to clear the caseload. For these reasons, I will not accept the amendment as tabled, which proposes to retain the commission's discretion to name individual abusers and would lead to considerable difficulties, which I have outlined.

Ms Enright

Will the Minister state how many perpetrators are involved in the 1,300 cases listed? The representative groups of the victims had faith that individual findings could be made. The Minister's predecessor, Deputy Woods, wrote to Mr. John Kelly of SOCCA in June 2000 and the letter dealt with individual findings. Obviously at the time the victims' group had issue with the way the commission decided it would deal with this, however, it eventually accepted that the commission believed it was not necessary or desirable to have the power to make specific findings of fact on specific allegations of abuse but it would investigate or ascribe responsibility to persons who were responsible for abuse. This represents a significant change from that. I will not press the amendment at this point, but I will return to it on Report Stage because it is important.

Ms O’Sullivan

I seek clarification on the amendments tabled by the Minister. If a person makes an allegation of abuse against an individual and that individual has been convicted of abuse in any circumstances, not necessarily abuse of this particular individual, he or she can be named. Is that the intent of the Minister's amendment?

Ms Hanafin

I will deal with the two questions. The information that Deputy Enright sought on the numbers involved is not available. To reply to Deputy O'Sullivan, the answer is "yes", the person can be named. As Deputy Enright knows, the good name of a person must be protected so a difficulty could arise in dealing with people who are long since dead, who are not able to answer charges made against them, which is why one does not want to turn this into mini-trials of people who might no longer be around.

Ms Enright

That was the situation when the Bill was originally enacted. Has the Department asked Mr. Justice Ryan for the information, to reply to my question? The number of perpetrators would make a significant difference. The number could range from 1,300 alleged perpetrators to a much lower number. Is it appropriate that we have a discussion on this topic?

Ms Hanafin

That information is not available.

Amendment, by leave, withdrawn.

Ms Hanafin

I move amendment No. 9:

In page 7, line 32, to delete "the".

Amendment agreed to.

Section 5, as amended, agreed to.

SECTION 6.

Ms Enright

I move amendment No. 10:

In page 8, line 14, after "public" where it secondly occurs to insert the following:

"and the criteria for deciding which meetings shall be held in public shall be agreed with representative groups and shall be published and made available to the public".

Amendment put and declared lost.

Amendment No. 11 not moved.

Question proposed: "That section 6 stand part of the Bill."

Ms Enright

When we were discussing how the committee would act in divisions, Deputy O'Sullivan raised the issue of resources and the Minister confirmed that resources will be available. My amendment sought that staff could be seconded if necessary. That would involve a financial charge on the Exchequer and the amendment was ruled out of order. I suppose it would not be acceptable anyway that staff would be seconded from the Department of Education and Science. However, had this been transferred to the Department of the Taoiseach it would have been important that extra staff could be seconded from that Department to ensure the commission could operate at full capacity.

Question put and agreed to.

SECTION 7.

Ms Enright

I move amendment No. 12:

In page 8, between lines 44 and 45, to insert the following:

"(b) a clear definition of what is meant by ‘reasonably practical' will be agreed in consultation with the representative groups and shall be published and made available to the public,".

Amendment put and declared lost.

Section 7 agreed to.

SECTION 8.

Ms Hanafin

I move amendment No. 13:

In page 9, line 23, to delete "the".

Amendment agreed to.

Section 8, as amended, agreed to.

Sections 9 to 20, inclusive, agreed to.

SECTION 21.

Ms O’Sullivan

I move amendment No. 14:

In page 14, between lines 7 and 8, to insert the following subsection:

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

The purpose of this amendment is to allow the commission the opportunity, when it is investigating a particular institution, to bring back people who may have given evidence before this legislation was introduced if it felt their evidence was relevant in the context of its current work. That would make sense.

Ms Hanafin

It makes sense. The commission and each of the committees have the power to invite further evidence from a person who has already appeared or made a submission. If they wish to investigate something more fully and wish to recall somebody they can do so.

Ms O’Sullivan

It is provided for in the previous legislation.

Ms Hanafin

Yes. The amendment is not, therefore, necessary.

Amendment, by leave, withdrawn.

Section 21 agreed to.

SECTION 22.

Ms O’Sullivan

I move amendment No. 15:

In page 14, between lines 16 and 17, to insert the following:

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

The purpose of this amendment is to define "educational service". I am not particularly hung up on the exact definition given in my amendment. However, there will be quite an amount of public money in this fund. I am aware the legislation provides that the Education Finance Board will determine how the money will be spent, but in a Bill of this nature it is important to include a definition within the legislation rather than leave it to the discretion of a board to decide what kinds of educational activities should be encompassed. We, as legislators, should ensure people get good education and that the institutions providing it are properly recognised, that there are no fly-by-night institutions making money out of this fund, and that the fund is not inappropriately used. That is why I have included a definition.

Ms Hanafin

In setting up the Education Finance Board we will be able to see what has happened to date to the money that has been spent, although not statutorily. To date money has been given to survivors, former residents and their relatives for a wide variety of educational services from degrees to driving lessons, depending on the circumstances of the persons or their needs. Were we to be so prescriptive in legislation as to stipulate second level or third level institutions, that would probably rule out such educational services as driving lessons or a certificate in art, which might be what somebody wants or needs. The Deputy is right that we are providing a substantial amount of money — €12.7 million. Obviously we want to ensure it is used properly, but the board will have discretion in determining what the educational services should be and will be able to determine the scope for the survivors and their families. It is important that there should be a wide range of educational courses made available to people because everybody's needs are different. I would like to see a broad definition of education to meet people's needs. The board can determine the criteria and the payment of grants and work out how they should be paid. By ensuring there are people on the board who reflect a wide range of interests, all of this can be taken on board.

Ms O’Sullivan

I see the point of the Minister's argument. I, too, would like to think it would be possible to respond to the educational needs of people. On the other hand, I want to ensure there is no abuse of the fund. I will not press the amendment at the moment because I am not particularly hung up on the definition. I am concerned, however, that legislation such as this does not define what we mean by an educational service and that it leaves too much discretion to a board. I accept the definition of educational services should be wide. Perhaps the Minister will examine the issue because it seems inappropriate not to have a definition.

Ms Hanafin

I understand where the Deputy is coming from. We must protect Government money, but a responsible board will report every year on how it is spending the money. I would never have thought of driving lessons as coming under the umbrella of education. When one thinks about it, however, it is something that would enable a person to get a job or participate more fully in society, which we also want from education. Giving the board that kind of flexibility is important. It will set its own criteria.

Amendment, by leave, withdrawn.

Ms Hanafin

I move amendment No. 16:

In page 14, line 25, to delete ", stepdaughter, brother, sister, half-brother or half-sister" and substitute "or stepdaughter".

Under the indemnity agreement signed on 5 June 2002 a sum of €12.7 million was provided for educational programmes for former residents of institutions and their families. The purpose of this amendment is to make provision for the former residents and their families. Following consultations with the survivor groups, I have decided to limit the scheme to those most affected by a family member's residence in an institution. Therefore, for the purpose of this Bill, relative means the spouse, son, daughter, grandson, granddaughter, stepson and stepdaughter of a former resident of an institution.

Ms O’Sullivan

I welcome the Minister's amendment. We had discussions with survivor groups as well and they were concerned that the definition was too broad and should be narrowed down in some way.

Amendment agreed to.

Mr. Crowe

I move amendment No. 17:

In page 14, line 26, after "resident" to insert "or day student".

The amendment relates to day students. I previously made the point that day students were also abused, and there is a responsibility on the State to recognise that fact and to put in place some kind of redress for them. I talked to a group of individuals who were day students in a school. They were told by one abuser that day students were physically and sexually abused on a more regular basis than many of the boarders. This matter requires consideration. The amendment attempts to ensure consistency in that day students were also physically and sexually abused.

Ms Hanafin

The €12.7 million which was part of the indemnity agreement between the State and certain religious congregations was given for the specific purpose of education programmes for former residents of institutions and their families.

As the criteria for making application to the education finance board does not require an applicant to be a victim of child abuse, the amendment proposed could have the result that most of the population would be entitled to apply to the board. There is no provision in the indemnity agreement for this money to be used for former pupils of day schools. I do not believe this amendment would be in the best interest of survivors.

Amendment, by leave, withdrawn.

Section 22, as amended, agreed to.

SECTION 23.

Ms Enright

I move amendment No. 18:

In page 14, line 27, to delete "one year" and substitute "three months".

The purpose behind this amendment is to try to get the education board up and running in the shortest possible timeframe. I appreciate that certain things have to be done to facilitate its proper establishment but when we were dealing with the Education for Persons with Special Educational Needs Act we agreed to the passing of the order establishing the special educational council prior to the Bill being passed by the Oireachtas. I do not know if it is possible for it to happen in three months but I urge the Minister to ensure that it is done in the shortest possible timeframe.

Ms Hanafin

I accept the principle that it be done in the shortest possible timeframe but I do not wish to put too tight a timeframe on it pending passing of the legislation, given that we are heading into the summer months and, more particularly, into the preparations for the next academic year. Unlike in the area of special education, the ad hoc committee is already accepting applications for the 2005-06 school year. It would be important for survivors to continue to deal with that group so that arrangements can be put in place for whatever courses they might be starting in September or October. This would allow the board members to be appointed and to commence their preparation of criteria, procedures and the application process. We are anxious that it would start as soon as possible.

Amendment, by leave, withdrawn.

Section 23 agreed to.

SECTION 24.

Ms O’Sullivan

I move amendment No. 19:

In page 15, between lines 10 and 11, to insert the following subsection:

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

This is to include the Education (Former Residents of Certain Institutions for Children) Finance Board under the provisions of the Freedom of Information Act. It is similar to the point I made about defining education services. Its intention is to provide for more transparency in terms of the workings of the board.

Ms Hanafin

I have no difficulty with the principle behind this, but rather the detail as set out. I would be happy to return to the matter on Report Stage.

Amendment, by leave, withdrawn.

Section 24 agreed to.

Section 25 agreed to.

SECTION 26.

Ms Hanafin

I move amendment No. 20:

In page 16, subsection (7), line 21, to delete "payment of" and substitute "payment to".

The purpose of the amendment is to rectify a technical error in the Bill as published by substituting "payment to" for "payment of".

Amendment agreed to.

Section 26, as amended, agreed to.

SECTION 27.

Mr. Crowe

I move amendment No. 21:

In page 16, subsection (3), line 38, to delete "Board" and substitute "Houses of the Oireachtas".

This matter was raised earlier. It has become clear over the years that the issue of abuse in educational institutions has dragged on with considerable discord between the Department of Education and Science and the various groups representing victims of abuse. There are legitimate concerns from some of the victims' groups that their views will not be properly represented by the board. It is right that the board should administer grants and so on but the criteria could be determined in committee or by some other mechanism devised by the Oireachtas. I have concerns about a board of eight members determining the criteria. Under the terms of the Bill a board member could only attend one meeting a year yet still be a member of the board. I would not consider such a low attendance as showing a commitment to the board.

Ms Enright

On Deputy Crowe's amendment, as I asked the Minister on Second Stage, how will the four former residents who are to be board members be selected? What criteria will be used to decide which representatives will become board members? This is an important matter. I am sure there are more than four members in many groups.

Ms Hanafin

We have not yet decided how to do that. We will try to find people who represent the broadest interests and who would be able to make the greatest contribution to this type of board. Deputy Crowe's amendment would limit the independence of the board. It would probably delay the application process if the board were to come back to the Houses of the Oireachtas for it to examine what it was doing or to change its criteria. It will be up to the board to look at what has been happening in the ad hoc committee and the criteria currently in place for funding, acceptable courses etc. It would restrict the board unnecessarily for it to have to come back to the Houses of the Oireachtas.

Mr. Crowe

The Minister referred to restricting the board. How long does she envisage that would be the case?

Ms Hanafin

I am saying the Deputy's proposal would be restrictive for the board.

Mr. Crowe

I do not understand.

Ms Hanafin

The Deputy's proposal that the board would have to revert back to the Houses of the Oireachtas every time it wanted to change its criteria or look again at what it was doing would restrict its work. If, for example, mid-year the board decided it would include driving schools, which was not the case at the outset, we should allow it the independence to do that if it considers there is a good reason to do so rather than having to revert back to us.

Ms Enright

We are discussing the specifics of how people will be appointed to the board. In general, this is not outlined in proposed legislation although in some instances specifications are made in terms of gender equality and so on. Other criteria are also outlined. It is wrong that the Minister does not have criteria established and that she is not able to tell us how she will deal with an emotive issue among victims' groups. They try in so far as possible to work in a spirit of co-operation but it is difficult for them to have legislation passed without knowing which group will represent them. The groups are concerned with various institutions where different types of abuse occurred. Even though they are all victims, they are not all the same and i is important that they have an idea of how the board membership will be decided. I ask the Minister to outline on Report Stage what will guide her because she will make the decision.

Ms O’Sullivan

There are more than four groups.

Ms O’Sullivan

As there are more than four groups and only four representatives will sit on the body which decides how money will be disbursed, it seems inevitable that certain people will feel they have not been represented. While the Labour Party has not tabled specific amendments on the matter, I support Deputy Enright's request for an indication from the Minister on Report Stage of the way representatives will be selected. My previous amendments on freedom of information and the definition of "education" are relevant.

The body will be powerful in that it will allocate funds to people for educational purposes. If there is a perception that some groups are represented while others are not, many difficulties may arise in the way the body does its work. While I cannot go back to my previous amendments, the areas they covered are related to this one. It is important for the Minister to revert to us on the matter on Report Stage.

Ms Hanafin

Before making an appointment, we will consult survivors' groups to find the best possible person to represent the wider interests. The legislation provides for the rotation of members during the term of membership, which will probably facilitate wider representation. We will certainly take that on board.

Amendment, by leave, withdrawn.

Section 27 agreed to.

Section 28 agreed to.

SECTION 29.

Mr. Crowe

I move amendment No. 22:

In page 18, lines 1 and 2, to delete subsection (2).

Amendment No. 22 is again about the board. While I agree with the general principle that some of the proposed eight members should be persons who are former residents of institutions, better and more detailed and transparent criteria must be set out in the Bill. Appointments will be completely under the Minister's control, as is the case with nearly all State boards, authorities and agencies, which is wrong. I have tabled amendment No. 22 to delete a subsection which creates the illusion that the Minister's nominating process is transparent and equitable. If half the board are former institutional residents, what promise do we have that they will be representative of all survivor groups and victims of abuse?

Some groups have received funding from the Department while others have not. Will groups which have not received funding be in the loop? It is a case of how we select a membership which is representative of all those who were in institutions. There may be a lawyer among the survivor organisations who could act in a representative capacity for many of the groups. We are agreeing to a pig in a poke as we do not know what is intended by the legislation. While four of the eight members will come from a residential institution background, we do not know from which groups they will be drawn. There is a view that some groups are closer to the Minister than others. Some groups have received funding while others have not and criticisms have been made that some were close to the previous Minister.

There is a need for greater clarity and transparency. I do not know whether the Minister can clarify the matter today, but there are significant concerns out there. While it will not be practical to accommodate the wish of all groups to have a representative on the board, we want to ensure that members are appointed who will be objective in their outlook and representative of most, if not all, of the groups involved.

Ms Hanafin

If Deputy Crowe does not trust the Minister, I cannot understand why he wants to remove the requirement that four of the members shall be former residents of one or more of the institutions set out. I doubt survivor groups would support amendment No. 22. It is important that with a fund of €12.7 million to be spent, survivors who were resident should be on the board. They are quite capable of objectively representing their interests. Of the eight members of the board, not including the chairman, it is crucial that four are former residents rather than a bunch of lawyers who might decide an art course is inappropriate and that all those in receipt of funds should be doing degrees.

Mr. Crowe

I notice the Minister has focused on my reference to a lawyer. Perhaps I should not have opened my mouth, but I am pointing out that there is a difficulty to be addressed. It is not me who is concerned about the concentration of power in the hands of the Minister, but the groups. They are concerned that the people appointed will not be representative of all survivor groups. It is clear that not all groups are in receipt of funding from the Department and that bias is being shown. It is the groups and individuals who are concerned about who the Minister intends to appoint, not me. There does not appear to be any mechanism which allows us to broaden involvement to include all the groups. That is the issue. How does the Minister intend to appoint a membership which is seen by all the groups as representative?

Ms Hanafin

Whatever concerns people have will not be addressed by removing the requirement that four of the members should be former residents. Making the amendment would leave any Minister with a free hand to appoint eight individuals not one of whom was ever a resident, and that would completely defeat the purpose of the fund.

Mr. Crowe

Will the Minister address the issue of how she will reassure the groups which feel left out of the process, do not receive funding or are not listened to? How does the Minister intend to involve them in selecting the four people?

Ms Hanafin

The first thing I will do is completely reject Deputy Crowe's amendment. Acceptance of amendment No. 22 would be to discriminate against the groups.

Amendment, by leave, withdrawn.

Section 29 agreed to.

SECTION 30.

Amendments Nos. 23 and 24 not moved.

Question proposed: "That section 30 stand part of the Bill."

Ms Enright

Is the €12.7 million provided for the fund intended to pay, inter alia, for the operation of the board, including salaries of members, or is it simply to fund education?

Ms Hanafin

No, it is for the operations of and disbursement by the board.

Ms Enright

It is a pity.

Question put and agreed to.

Sections 31 to 33, inclusive, agreed to.

NEW SECTION.

Ms O’Sullivan

I move amendment No. 25:

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

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

There is a great deal of dissatisfaction that the Residential Institutions Redress Act 2002 forbids people to speak about what happened to them when they went before the residential board. Many confidentiality provisions are set out. My amendment does not seek to encourage people to tell every detail of their experience before the board but to allow them to disclose that they have made applications, the name of the institution involved, the category of abuse and injury and the amount of the award. The amendment is designed to address the frustration many Deputies have been told about by people who feel they are not permitted to provide information. While we receive reports from the board and a certain amount of information comes out, the amendment would have the effect of addressing the frustration of people who are forbidden to talk about their experiences by permitting them to disclose certain facts while avoiding the creation of flexibility.

Ms Hanafin

As the Deputy said, section 28 of the Residential Institutions Redress Act prohibits the publication of information concerning an application or an award that refers to any other person, relevant person or institution by name or which could reasonably lead to the identification of any other person, relevant person or institution. The Act provided for the establishment of the Residential Institutions Redress Board to provide a mechanism to make financial awards to victims of abuse, assist them in their recovery and enhance the quality of the remainder of their lives. It also provided an alternative to having to pursue traumatic civil court cases to obtain compensation for their injuries.

While the civil courts operate on the basis that a plaintiff must prove his or her case on the balance of probabilities, the redress board operates on a much lower threshold of proof and does not make a finding of guilt in regard to an individual or institution. It is a confidential process, held in private, purely because it is not a court of law. It does not make findings of fact or culpability in particular cases. The confidentiality provision is required to protect the rights of persons, including victims. Both sides have a right to their good name. The confidentiality provision is in place because cases are thrashed out completely in court and operate on a completely different basis with a lower threshold of proof.

Ms O’Sullivan

I appreciate that there is a need for a certain level of confidentiality. I am not asking that the name of the accused who is being identified as the perpetrator be revealed but that one should be allowed to talk about the amount of money awarded, the institution in question and the general category of abuse.

While I appreciate that the amendment is not central to what we are discussing today, I have obviously used the opportunity to raise this issue which is more related to the Residential Institutions Redress Board Act than the Commission to Inquire into Child Abuse (Amendment) Bill 2005. However, it would be helpful to the people concerned and serve the purpose of providing general information if they could say their stories were heard by the commission and state the amount awarded to them. I will not press the amendment because I realise it is not central to the Bill.

Amendment, by leave, withdrawn.

Chairman

Amendment No. 26 is out of order because it involves a potential charge on the Revenue.

Amendment No. 26 not moved.

Ms Hanafin

I move amendment No. 27:

In page 22, between lines 20 and 21, to insert the following:

"(f) in section 14, by inserting, in subsection (13), after ‘it’, ’and any such division shall consist of at least a person to act as chairperson of the division (and that person may be a person other than the Review Committee Chairperson) and one other member of the Review Committee’,”.

This amendment is to allow the review committee to sit as a committee of two. While section 14(13) of the Residential Institutions Redress Act 2002 permits the review committee to sit in divisions of itself to hear applications before it, the right to sit as a committee of two is not expressly authorised by legislation. The amendment gives additional flexibility to the committee.

Amendment agreed to.

Ms Hanafin

I move amendment No. 28:

In page 22, between lines 21 and 22, to insert the following:

"(g) in section 28, by inserting the following subsections after subsection (5):

‘(5A) Nothing in subsection (1) operates to prohibit the production of a document prepared for the purposes or in contemplation of an application to the Board or a submission for a review by the Review Committee, or given in evidence in such application or review, to—

(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or

(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.

(5B) Nothing in subsection (1) operates to prohibit the giving of information or evidence provided or given to the Board or the Review Committee to—

(a) a body or other person when it, or he or she, is performing functions under any enactment consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter, or

(b) such body or other person as may be prescribed by order made by the Minister, when the body or person concerned is performing functions consisting of the conducting of a hearing, inquiry or investigation in relation to, or adjudicating on, any matter as may be so prescribed.’,”.

This amendment is to allow a complaint against a solicitor to be fully investigated. The Law Society of Ireland raised a concern regarding section 28 of the Residential Institutions Redress Act 2002 which prohibits the disclosure of certain information. The society is asked on occasion to investigate complaints against solicitors acting on behalf of applicants to the redress board. As was often the case, in order to respond in detail to the complaint, the solicitor would have to disclose information or provide documentation which would contravene section 28 of the Residential Institutions Redress Act 2002. I am concerned to ensure any person who has a complaint against a solicitor can have it investigated fully by the relevant authorities. The amendment will allow this to happen.

Amendment agreed to.

Question proposed: "That section 34, as amended, stand part of the Bill."

Ms O’Sullivan

I want to ask the Minister about theadding of certain institutions to the Schedule, although the question might not be of direct relevance. Again, I am taking the opportunity that presents itself. The Minister is considering adding institutions to the Schedule in respect of the Residential Institutions Redress Act 2002. However, I believe people will have to have applied by the end of this year. Therefore, if they were in an institution that the Minister is considering adding to the list, they will be subject to a fairly tight timeframe. If she is adding further institutions, I ask her to do so as soon as possible.

Ms Hanafin

I hope to be in a position to list the additional institutions before the end of the Dáil term.

Ms Enright

Given that amendment No. 26 was ruled out of order because it involved a potential charge on the Exchequer, I ask the Minister to give further consideration to the issue of day schools, as raised by a number of members of the committee, and to the cases of those who took part in vaccine trials, an issue raised by Deputy Naughten on Second Stage. Those who fall into these categories should be entitled to a hearing by the Residential Institutions Redress Board.

Ms Hanafin

The Residential Institutions Redress Act 2002 was passed specifically to deal with the residents of institutions, not those attending day schools. The court has already excluded those who were involved in vaccine trials.

Question put and agreed to.

Section 35 agreed to.

SCHEDULE.

Ms Hanafin

I move amendment No. 29:

In page 26, between lines 14 and 15, to insert the following:

"8. (1) Where at a meeting of the Board any of the following matters arise, namely—

(a) an arrangement to which the Board is a party or a proposed such arrangement, or

(b) a contract or other agreement with the Board or a proposed such contract or other agreement, then, any such member of the Board present at the meeting who otherwise than in his or her capacity as such a member has an interest in the matter shall—

(i) at the meeting disclose to the Board the fact of such interest and the nature thereof,

(ii) neither influence nor seek to influence a decision to be made in relation to the matter,

(iii) absent himself or herself from the meeting or that part of the meeting during which the matter is discussed,

(iv) take no part in any deliberation of the Board relating to the matter, and

(v) not vote on a decision relating to the matter.

(2) Where an interest is disclosed pursuant to this paragraph, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the member by whom the disclosure is made shall not be counted in the quorum for the meeting.

(3) Where at a meeting of the Board a question arises as to whether or not a course of conduct, if pursued by a member of the Board, would constitute a failure by him or her to comply with the requirements of subparagraph (1), the question may be determined by the chairperson of the meeting, whose decision shall be final, and where such a question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

(4) Where the Minister is satisfied that a member of the Board has contravened subparagraph (1), the Minister may, if he or she thinks fit, remove that member from office and, in case a person is removed from office pursuant to this subparagraph, he or she shall thenceforth be disqualified for membership of the Board.

9. (1) Where a member of the staff of the Board has an interest, otherwise than in his or her capacity as such a member, in any contract, agreement or arrangement, or proposed contract, agreement or arrangement, to which the Board is a party, that person shall—

(a) disclose to the Board his or her interest and the nature thereof,

(b) take no part in the negotiation of the contract, agreement or arrangement or in any deliberation by the Board or members of the staff of the Board in relation thereto, and

(c) neither influence nor seek to influence a decision to be made in relation to the matter nor make any recommendation in relation to the contract, agreement or arrangement.

(2) Subparagraph (1) shall not apply to contracts or proposed contracts of employment of members of the staff of the Board with the Board.

(3) Where a person contravenes this paragraph the Board may make such alterations to the person's terms and conditions of employment as it considers appropriate or terminate the person's contract of employment.".

This amendment is to provide clear guidelines in the legislation to cover conflicts of interest pertaining to members of the education finance board. A number of the survivor groups have raised this issue. The amendment will address their concerns and is a standard provision in legislation of this type.

Amendment agreed to.

Schedule, as amended, agreed to.

Title agreed to.

Bill reported with amendments.