SELECT COMMITTEE ON JUSTICE, EQUALITY AND WOMEN’S RIGHTS debate -
Wednesday, 20 Oct 1999

Vol. 2 No. 8

Statute of Limitations (Amendment) Bill, 1998: Committee Stage.

SECTION 1.

Minister for Justice, Equality and Law Reform (Mr. O’Donoghue)

I move amendment No. 1:

In page 3, lines 13 to 15, to delete subsection (2) and substitute the following:

"(2) The Statutes of Limitations, 1957 and 1991, and this Act may be cited as the Statutes of Limitations and shall be construed together as one Act.".

This is a technical amendment dealing with the collective citation of the 1957 Statute of Limitations, the amending Act of 1991 and this Bill. It is a type of citation which the parliamentary draftsman has suggested should be used in this case on the basis that it facilitates reference to the statutes collectively, and I am happy to commend it to the committee on that basis. I note that Deputy O'Sullivan has subscribed her name to this amendment and I welcome that.

Ms O’Sullivan

I thank the Minister and his officials for a number of meetings that have been held and for their co-operation with regard to the legislation. This is a drafting amendment and I have no objection to bowing to the drafting skills of the Minister's officials. I support this amendment.

Amendment agreed to.

Section 1, as amended, agreed to.

NEW SECTION.

Chairman

Amendment No. 2 is in the name of the Minister. Acceptance of this amendment involves the deletion of section 2 of the Bill. Amendments Nos. 1 to 8, inclusive to amendment No. 2, and 4 are related. Amendment No. 5 is consequential on No. 2 and amendment No. 1 to the main amendment No. 5 is related to amendment No. 5 and is also consequential on amendment No. 1 to the main amendment No. 2.

Mr. O’Donoghue

I move amendment No. 2:

In page 3, before section 2, to insert the following new section:

"2.-The Statute of Limitations, 1957, is hereby amended by the insertion of the following section after section 48:

'48A. (1) A person shall, for the purpose of bringing an action-

(a) founded on tort in respect of an act of sexual abuse committed against him or her at a time when he or she had not yet reached full age, or

(b) against a person (other than the person who committed that act), claiming damages for negligence or breach of duty where the damages claimed consist of or include damages in respect of personal injuries caused by such act,

be under a disability while he or she is suffering from any psychological injury that-

(i) is caused, in whole or in part, by that act, or any other act, of the person who committed the first-mentioned act, and

(ii) is of such significance that his or her will, or his or her ability to make a reasoned decision, to bring such action is substantially impaired.

(2) This section applies to actions referred to in subsection (1) whether the cause of action concerned accrued before or after the passing of the Statute of Limitations (Amendment) Act, 1999, including actions pending at such passing.

(3) This section is in addition to and not in substitution for section 48 of this Act.

(4) In this section-

"an act of sexual abuse" includes-

(a) any act of causing, inducing or coercing a person to participate in any sexual activity,

(b) any act of causing, inducing or coercing the person to observe any other person engaging in any sexual activity, or

(c) any act committed against, or in the presence of, a person that any reasonable person would, in all the circumstances, regard as misconduct of a sexual nature:

Provided that the doing or commission of the act concerned is recognised by law as giving rise to a cause of action;

"full age" means-

(a) in relation to a person against whom an act of sexual abuse was committed before the commencement of the Age of Majority Act, 1985, 21 years, and

(b) in relation to a person against whom an act of sexual abuse was committed after such commencement, full age within the meaning of that Act.'.".

The amendment addresses the issues at the heart of the Bill on three levels - policy, legal-technical and drafting. I note Deputy O'Sullivan has tabled a small number of amendments to this amendment. These are of a policy nature and concern also technical or drafting matters. The approach signifies that while there remains some difference, there is nonetheless a broad acceptance between us of the technical shape the Bill should take to meet its objectives.

On Second Stage I made clear that the Government had carefully considered the best approach which should be taken in relation to questions of changes in the law and limitation periods in cases of child abuse. The Government is satisfied that the case for amending the statutes as they apply in cases of sexual abuse in childhood is unanswerable. We are happy to support the principle of this Bill to the extent that it changes the law in relation to those who, because of sexual abuse in childhood, have been unable to bring themselves to commence civil proceedings relating to that abuse within the normal time limits of the statutes.

In relation to other forms of childhood abuse, the more complex questions involved have been referred by the Attorney General to the Law Reform Commission for research and recommendations. That body has recent experience in dealing with other aspects of limitation law, by any standard a highly technical legislative area. It was the recommendations of the commission on the matter which led to the amending legislation of 1991 under which the ground-breaking rule of discoverability was introduced. That rule is to the effect that the three year limitation period for actions in respect of personal injuries arising out of negligence, nuisance or breach of duty, which normally runs from the date of accrual of the cause of action, starts to run against a person who has been injured but who was not aware of the injury at the time, from the point where that person became aware of or could reasonably have become aware of the relevant facts.

The commission also has considerable experience of the particular human problems of child abuse, having produced a landmark report on the topic in 1990 which led to important changes in the criminal and civil law. The Criminal Evidence Act of 1991, the Domestic Violence Act of 1996 and the Children Act of 1997 contained provisions inspired by the recommendations in that report. The commission has facilities to conduct research into legal and other aspects of the matter, drawing on the laws and expertise available both locally and abroad.

I do not wish to anticipate the results of the commission's researches and whatever consultative process it may engage in before arriving at its conclusions on the matter. It may be that the commission will recommend an approach similar to that taken in this Bill. It is possible that it may recommend a different course in line with, say, the experience in other jurisdictions. Whatever approach is recommended, however, Deputies may take it that the Government will deal with the Law Reform Commission's report on this matter in the proactive way that has characterised our approach so far to the other aspect of the problems that victims of abuse in childhood are facing. We have acted promptly by accepting the principle of this Bill as it relates to sexual abuse cases and we will act equally promptly on the commission's report when it becomes available. It follows that I will oppose Opposition amendments Nos. 1 and 2 to the Government amendment because they seek to extend the scope of the new section to cases of physical as well as sexual abuse. Likewise, I oppose the related amendment which seeks to make the same change in the long title.

I turn now to the detail of the Government's proposals for amendment of section 2. The Government's amendment at subsection (1)(a) of its proposed section 48A of the 1957 statute refers to an act of sexual abuse. The expression "an act of sexual abuse" is defined at the new subsection (4). This has been carefully and sensitively drafted to ensure that the courts and potential litigants will be clear as to the sort of activity encompassed by this provision. The main features of that definition are as follows. The act must be such as is recognised by law as giving rise to a cause of action. Acts encompassed include causing the victim to participate in or observe sexual activity. Also included are acts committed against or in the presence of the person which meet the test of what a reasonable person would regard as sexual misconduct.

I note that Opposition amendment No. 6 takes a somewhat different approach to the definition but I will deal with that later when the amendment is moved.

From the point of view of legal technicalities, the Government amendment addresses a number of points. The first matter concerns the scope of the disability. As framed, the Bill would permit a person to bring a late claim in respect of, say, a car accident or even the sale of defective goods on the basis of a disability in relation to child sex abuse at the time the accident occurred or the purchase was made. I mentioned this in my Second Stage contribution and my understanding, from the reaction of Deputy O'Sullivan, the promoter of the Bill on that occasion, was that such a sweeping effect is not her intention. To ensure that the intention is met the Government amendment provides that the disability is only for the purpose of the pursuit of proceedings arising out of the abuse and ensures that it does not extend to all other forms of legal proceedings to which the concept of disability under the statutes of limitation applies by virtue of section 49 of the Act of 1957.

The second point concerns the nature of the injury resulting in a disability. The Bill, as framed, uses the expression "emotional or mental" to describe the injury which results in an inability to institute proceedings within the normal timeframe. The Government amendment instead proposes what I consider to be the more appropriate expression, namely, psychological injury. That expression is used, for instance, in the Domestic Violence Act of 1996 to encompass the mental and emotional welfare of the victim of domestic violence. I am satisfied that the expression "psychological injury" better expresses the type of injury that is in question in the Bill.

The third point about which I have concerns is the link between the disability and the abusive act. The Bill requires that the injury resulting in the inability to proceed within the normal limitation period be attributable to the act of abuse. The Government amendment uses instead the expression "caused by", conveying a more defined nexus between the disability and the perpetrator's act. The amendment also provides for a possible causal link between the disability and any other act of the perpetrator. This covers the situation where the person's inability to pursue a claim is caused not by the abuse of conduct but, for example, by a threat made by the perpetrator against the victim or against some other member of the victim's family warning him or her against going to the authorities.

The fourth point I want to address concerns the age of the victim. The Bill covers abusive acts when the victim was a child, but it does not define the age range intended to be covered. The Government amendment proposes to encompass abusive acts committed against a person not of full age. The concept of full age is defined by the Age of Majority Act, 1985 as the attainment of 18 years or earlier marriage. Before that Act came into force, full age was reached at the age of 21. The concept of full age should be preferred in the context on the basis that a person not of full age is already under a disability for the purpose of the statute of limitations. The definition of full age provided for in the Government amendment takes account of the pre-1985 as well as the post-1985 position. This ensures the disability concept will apply in respect of abusive acts committed before the commencement of the 1985 Act against a person of up to and including 20 years of age.

My final main point concerns the retrospective effect of the provisions in the Bill. The most recent amendment of the statutes of limitation in the Act of 1991 provided, at section 7, for the application of the new provisions ". . . to all causes of action accruing whether before or after the passing of that Act and to proceedings in being at the time of its passing". This provision was made in accordance with a recommendation of the Law Reform Commission in a report which formed the basis of that Act. An analogous provision has not been provided for in the Bill as framed, but I am sure Deputies would readily agree it is necessary to avoid it being interpreted as not being retrospective in its application to cases which arose before the passing of the Bill. Subsection (2) of the Government amendment to section 2 proposes the required change. It can be argued that the provision of the 1991 Act and, by extension, the analogous provision in the Government amendment, might be the subject of challenge on the basis that it could be regarded as retrospectively worsening the position of a defendant who has filed the defence. The arguments in favour of the provision, however, outweigh those against in this instance. It would appear inconsistent for the Oireacthas to have provided, as it did in section 7 of the 1991 Act, a provision which has never been challenged and yet deliberately not so provide in relation to the directly analogous provisions of this Bill.

If the policy and technical-legal changes, which I suggested should be made to section 2 are acceptable, it follows that certain further drafting changes should be made. The principal drafting change would be the incorporation of my amendment as a new section of the 1957 statute rather than as an amendment of any existing provision. This has merit because it helps to reinforce the distinction between the nature of the new provision and existing provisions in the law.

Deputies will appreciate it is important that the Long Title should encompass specifically the scope of the Bill. Since my amendments affect certain aspects of the scope of the Bill as framed, it is necessary to reflect these amendments in the Long Title. I am advised by the draftsman that the Long Title contained in Government amendment No. 5 follows correctly the scope of the Bill based on the various other Government amendments. I oppose the amendment to this amendment, which seeks to introduce the reference to physical abuse into the Long Title for the reasons I outlined.

In this contribution I have not, by and large, addressed the various amendments to the Government amendment tabled by Opposition Deputies. It might be better if I left commentary on the detail of those amendments until the proposers of them have made their contributions and I will gladly respond to them.

Chairman

I wish to clarify that we are discussing the main amendment No. 2, amendments Nos. 1 to 8, inclusive, to the that amendment, main amendments Nos. 4 and 5 and amendments No. 1 to main amendment No. 5, together, by agreement. I am sure that is clear to everyone.

Mr. O’Donoghue

It was well put.

Chairman

Thank you. I call Deputy O'Sullivan on amendment No. 1 to amendment No. 2.

Ms O’Sullivan

Are we taking main amendments Nos. 4 and 5 and amendment No. 1 to main amendment No. 5 now or is that a separate grouping?

Chairman

No, we are taking amendments Nos. 1 to 8, inclusive, to amendment No. 2——

Ms O’Sullivan

Only amendments Nos. 1 to 8.

Chairman

——and main amendments Nos. 4 and 5.

Mr. Flanagan

It might be better to state the amendments we are not taking.

Ms O’Sullivan

My reading of the grouping of amendments is that the second grouping of amendments is to be taken separately. I understood that amendments Nos. 4 and 5 and amendment No. 1 to amendment No. 5 were to be taken separately from amendment No. 2 and the amendments to amendment No. 2.

Chairman

Do members want to take amendments Nos. 1 to 8 to the main amendment No. 2?

Ms O’Sullivan

And amendment No. 2. That is how I read the grouping of amendments, otherwise we would be taking all the amendments together.

Chairman

The main amendments Nos. 4 and 5 will be taken separately, as a separate grouping.

Ms O’Sullivan

That is the way I understood it.

Chairman

Amendment No. 1 to amendment No. 2 is in the Deputy's name.

Ms O’Sullivan

I move amendment No. 1 to amendment No. 2:

In the first line of subsection (1)(a), before "sexual" to insert "physical or".

I assume I am to address amendment No. 2 and the various other amendments to amendmentNo. 2.

I accept many of the points the Minister made and I will not challenge them, but I would take issue with him in respect of the areas about which I have submitted further amendments to amendment No. 2. I will deal with the main issue which, as the Minister said, is a policy issue on which we would disagree. That is the substance of my amendment No. 1 to the Minister's amendment No. 2, which states "In the first line of subsection (1)(a), before "sexual" to insert "physical or". We seek to include physical as well as sexual abuse under the terms of the Bill on the basis that the kind of abuse we are talking about ultimately is the use of power to abuse young children. That can take the form of sexual abuse, physical abuse of a combination of both. From discussions I have had with people who have been victims of this kind of abuse, I am aware they would not distinguish specifically between sexual abuse and physical abuse in so far as to them it was all about controlling them and abusing them. Somebody else was in a position of power and was able to abuse them and had whatever perversion it took to carry out those kinds of acts. It has been passionately put to me by people who were subject to such abuse that they want physical abuse included not only in this legislation but in any context where there is an attempt to redress or, at least, to acknowledge past abuses. In many cases it might even be difficult to say whether an abuse was totally sexual or totally physical because in many cases the two have gone together.

I accept the Minister has referred the issue of physical abuse to the Law Reform Commission. Is the commission likely to report before we finish dealing with this legislation in the Houses of the Oireachtas? We do not know what it will recommend. If it recommends the inclusion of physical abuse, I assume the Minister would include it at a later stage in the legislation. While it is difficult to predict what it will recommend, I ask the Minister to indicate if that will be the case. The Law Reform Commission may not make a clear recommendation and, again, we would be in the position of not knowing whether physical abuse is included. We should include it in the legislation now on the basis of what I have said, namely, that the intent and effect of this abuse, whether physical, sexual or a combination of both, can be as traumatic as sexual abuse. We would be discriminating against those people who have been subject to serious physical abuse if we did not include it in the legislation. It will be up to the courts to decide how the severity of the abuse should be interpreted. I am talking about people who were subject to serious physical abuse in the past and who have suffered as a result.

We tabled amendment No. 3 to amendment No. 2, which states ". . . to delete "caused by" and substitute "arising out of circumstances related to"." because of a concern that it might not always be possible to sue the original wrongdoer; it might not always be possible even to identify the original wrongdoer and it might be easier for the victim to sue the institution which failed to prevent the abuse. That is why we put down the amendment. In some cases, the person who was abused might not know the name of his or her abuser or the abuser might have used a different name at the time of the abuse whereas if the abuse took place in an institution, the victim will know who was responsible for running it.

Amendment No. 6 to amendment No. 2 relates to the definition and proposes that the word "unlawful" be included. It is possible that the law might not be broken in relation to some cases of sexual activity, for example, if it was consensual and the person was over the age of consent but less than 18 years of age. There might be aspects of this which might not necessarily be unlawful. The inclusion of the word "unlawful" would, in effect, protect the person who is being sued in case they were being sued for something that was not unlawful.

Amendment No. 5 to amendment No. 2 - Deputy Higgins and Deputy Flanagan have also put down amendments on this - is an attempt to ensure that a person who might have gone to the Garda to report child sexual abuse before the introduction of this legislation will not be deprived of taking action after this legislation is enacted. The amendments put down by the other two Deputies also address this issue. Obviously the later amendment in relation to physical abuse also relates to that. The point about physical abuse is the one I feel most strongly should be included in this legislation.

Mr. Higgins (Mayo)

Amendment No. 2, like the amendment put down by Deputy O'Sullivan, seeks to include physical abuse. I concur with Deputy O'Sullivan's comments. We should not make a distinction between the two - abuse is abuse. If somebody has been the victim of depravity, whether it is physical or sexual abuse, it should come within the remit of the Bill, notwithstanding the fact that the matter has been referred to the Law Reform Commission. When it became public that this Bill dealt exclusively with sexual abuse, I received a number of contacts from the public. Their views were the same as Deputy O'Sullivan's, that in 90 per cent of cases of sexual sadism of this nature, it is accompanied by physical abuse and depravity. We should address the requirements of the Bill in their entirety now.

The other amendments in my name are consequential on amendment No. 2. They introduce plurality by increasing it from one act to several acts of physical or sexual abuse. With regard to amendment No. 8 to amendment No. 2 the Bill provides that where one is a victim of sexual abuse and mentally incapable of dealing with it, the Statute of Limitations does not start running until then. However, there is a huge defect in that provision. In other words, people who have come to terms in the last three years can now bring a court case.

However, let us say the victim became capable of dealing with it eight years ago, wanted to proceed with a court case and went to the solicitor and was told that due to the existing Statute of Limitations, there was no point attempting to bring a case. There is no hope for these people because there was a restriction then due to the existence of the Statute of Limitations. They wanted to bring a case, had come to terms with what happened and realised that they had a right to go before the courts and seek redress but could not do so because they were offered what was then the prevailing and correct legal advice, that is, that they were statute barred from so doing.

This Bill retains the three year ruling. It therefore only deals with those who came to terms with the abuse within the past three years. It will exclude a huge number of people who were abused, came to a realisation of the abuse, considered the legal option but because they had no legal redress at the time, were excluded from seeking it. These people are still suffering the mental consequences. The Bill does not address their grievances. One could say that those who came to a realisation of the abuse in the past year or two but made no effort to sue will benefit from this legislation. I ask the Minister to consider the amendment seriously.

Mr. Flanagan

For ease of discussion, Chairman, I suggest that the committee deal with amendment No. 4 to amendment No. 2 in my name. It deals with the same point.

Ms O’Sullivan

I accept that.

Mr. Flanagan

It is just a question as to where in the legislation the points made by Deputies Higgins and O'Sullivan can best be included. It could be by way of amendment No. 8 to amendment No. 2 put down by Deputy Higgins or by inserting a new section, which is my proposal. I do not have any difficulty with either, provided the Minister is prepared to concede the important point.

Amendment No. 4 to amendment No. 2 deals with a situation where persons have been aware, sometimes for many years, that the consequences of their having been abused were such as to give rise to a serious disability. It was not something that came into their knowledge in recent times. Due to the wording of the Bill there is a difficulty for these people. They would be excluded from seeking civil redress by virtue of the current Statute of Limitations. We should deal with that problem.

It is also relevant to those people who went further and might have reported the matter to the Garda Síochána. Irrespective of the consequences of such reporting by way of criminal action at a later stage, those people are left without a civil remedy. That is fundamentally unjust. Consideration should be given to their plight and they should be afforded a civil remedy in law. It is not sufficient to allow the full force of the criminal law to be brought to bear; there is also the issue of civil compensation and civil action.

I do not mind whose wording is accepted or what section of the Act is amended to permit the type of civil remedy to which I refer. I will concede amendment No. 4 to amendment No. 2 provided the Minister gives an assurance that the point we are making will be taken on board.

Chairman

Does Deputy O'Sullivan wish to discuss amendment No. 5 to amendment No. 2?

Ms O’Sullivan

It was due to the fact that I misread it that I thought it was not being included. It is the same point I made earlier with regard to amendments Nos. 1 and 2 to amendment No. 2.

Mr. O’Donoghue

I will deal with the amendments. Amendments Nos. 1 and 2 to amendment No. 2 are opposed as is amendment No. 1 to amendment No. 5. As I made clear in my opening contribution and on Second Stage, the Government is wholeheartedly committed to dealing in a sensitive and broadly based way with the issue of child abuse in all its aspects. This includes the setting up of the Laffoy commission, the allocation of funds to the counselling services of health boards to assist the victims of past child abuse, the publication of national guidelines for the protection and welfare of children, the establishment of a social services inspectorate which will concentrate for an initial period of three years on residential child care and the significant addition to funding of child care services under the Child Care Act, 1991.

As part of that broad based approach, I have made clear that the Government accepts the principle underlying the Bill to the extent that it deals with sexual abuse in the past. This is why the Government supported the Bill on Second Stage and amendments have been tabled. Due to the Government's view that different considerations may apply in cases involving allegations of physical abuse, that aspect of the question has been referred by the Attorney General to the Law Reform Commission. That body is in the best position to research the matter thoroughly and to tease out all aspects of the question, including the legal aspects which, as we are aware, can be highly technical, and to engage in the consultative process which we all recognise is useful in arriving at a suitable reform of the law in this area.

I understand from informal inquires made this week that the commission's work on this matter is well in hand. However, based on past experience, it is most unlikely that the commission's report will be available by the time this legislation has been passed by both Houses of the Oireachtas. It makes sense to wait until we have the benefit of the commission's work in this area before proceeding with changes in the law of limitations as it applies to questions of physical abuse. As I pointed out, it may be that its recommendations will be in line with the proposals in the Bill. Equally, it may be the case that it will propose another course. My view is that any change in the law in relation to physical abuse should be informed by the results of the Law Reform Commission's deliberations.

I repeat my assurance that I will act on the commission's report when it becomes available in a prompt and pro-active manner as I have acted promptly and pro-actively regarding sexual abuse cases by accepting the principle of the Bill before the committee rather than oppose it on the basis that the Government will bring forward its own proposals. I stress that the aim of including physical abuse within the terms of this Bill cannot be achieved because the report will not be to hand. When the report is available, as I have stated, I will be pro-active and prompt in my response. I wish to make it clear that I am not under any circumstances excluding the possibility of physical abuse being included in the future following the commission's report and it is not my intention by referring it to the Law Reform Commission to park it. My objective is to get the best possible advice in what is a highly complex area.

Amendment No. 3 to amendment No. 2 is opposed. It seeks to create a looser nexus than is provided for in my amendment between the act of sexual abuse giving rise to the proceedings and the personal injuries in respect of which the complaint is being brought. The area we are dealing with relative to this amendment is where proceedings are being taken against a defendant other than the perpetrator of the abuse giving rise to the injuries. Such a defendant might be the management of a children's home which employed the abuser or the local health board against whom it is being alleged that there was a failure to deal with abuse by a relative in the family home. The closest to an equivalent phrase used in the Bill as framed was "in respect thereof". There is general acceptance that this expression lacks clarity and is unsuitable in the context of the more detailed approach taken in my amendment. However, the words "in respect thereof" crop up regularly in my experience.

The Government's proposal is to use the expression "caused by" which conveys a well understood and clearly defined link between the abusive act and the injuries caused by it. The Opposition amendment seeks to make that link more tenuous by using instead the expression "arising out of circumstances related to" the abusive act. This is an inappropriately remote link as it would encompass situations which, in fairness, I do not think anybody would want within the scope of this special exception to the normal application of the statute of limitations.

A practical example is the situation of a child injured as a result of an act of sexual abuse who is being removed to hospital by ambulance. The ambulance crashes, causing other injuries to the child. Those further injuries arise out of circumstances related to the abusive act since the child would not have been in the ambulance but for the abusive act. However, those further injuries could not be classed as injuries caused by the act of sexual abuse. It would not be a fair operation of law that the ambulance driver or the driver of the other vehicle involved or, more likely, their insurers should be exposed to a late claim possibly many years later in respect of the road accident on the basis that the injured person had been unable to proceed against them because of psychological injury caused by the act of sexual abuse in which they had no part.

Mr. Flanagan

It is remote.

Mr. O’Donoghue

Yes. The link between the act of sexual abuse and the injury caused by the crash is too remote. The accident is a separate and independent cause of action. It should not be encompassed in the Bill, but it would be included if the Opposition's amendment was accepted. This is the point I am trying to make.

Having considered the matter carefully and having taken the advice of the Attorney General on the point, I am satisfied that the words used in paragraph (b) of my amendment are sufficient to encompass the full range of potential injury which can be causally related to the act of sexual abuse but which does not stretch the link between injury suffered and the abusive act inappropriately wide.

Amendment No. 4 to amendment No. 2 is opposed. I am advised by the parliamentary draftsman that this amendment is unnecessary on the basis that, in accordance with section 11(a) of the Interpretation Act, 1937, "every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural and every word importing the plural shall, unless the contrary intention appears, be construed as if it also imported the singular." Furthermore, the inclusion of the plural would be incorrect because the expression "such act" refers to the singular phrase "an act of sexual abuse" in paragraph (a) of the subsection. The Deputy may wish to withdraw his amendment on that basis.

Amendment No. 5 to amendment No. 2 is opposed. The words "any such act" are unnecessary in circumstances where the provision already relates the disability of the victim to the original act of sexual abuse or any other act of the abuser, which other act may not have been an act of sexual abuse at all. As I stated earlier, it may be the issuing of a threat by the abuser against the victim or against someone else close to the victim warning against going to the authorities about the abusive act. As I pointed out in relation to the Deputy's previous amendment, the singular act of sexual abuse which is referred to in this paragraph encompasses what may be in some cases a pattern or series of abusive acts. The Deputy may also wish to withdraw this amendment on that basis.

Amendment No. 6 to amendment No. 2 is opposed. It seeks to introduce a modification of the definition of the phrase "an act of sexual abuse" in a fashion which I could not accept for a number of reasons. First, the definition as worded in my amendment is a non-exhaustive list of types of activity which are to be encompassed within the expression "an act of sexual abuse". The Deputy's amendment to the amendment would change the non-exhaustive nature of the definition and thus runs the risk of excluding from the definition a class of activity which we, as legislators, have not envisaged but which in a particular case in the future might be appropriate for inclusion within the scope of the expression. We, as legislators, should not bind the courts in the future regarding the types of activity listed in paragraphs (a), (b) and (c) of the definition although the list is comprehensive as it stands. To do so might result in an injustice in some unforeseen case.

Second, the Deputy's amendment proposes to limit the definition to acts which are unlawful. In the context of the Bill, there is a real danger that the use of the word "unlawful" could be held to mean acts which constitute a criminal offence. There are many acts which do not of themselves constitute criminal offences but which might give rise to a cause of action in the civil context and which any court and the average disinterested outsider would properly regard as being acts of sexual abuse.

Conversely acts which may be criminal offences might not give rise to a cause of action and should properly be excluded from the definition of an act of sexual abuse in the context of civil proceedings. The proviso to the definition in the Government amendment identifies as an essential attribute of the definition that the act in question should be recognised by law as giving rise to a cause of action. That expression correctly identifies the proper extent of acts to be encompassed by the definition and the use of the word "unlawful" in the Deputy's amendment would have the effect of misidentifying that process from that.

Amendments Nos. 7 and 8 to amendment No. 2 are opposed, as is Deputy Flanagan's amendment No. 4 to the Bill, which is similar in import to Deputy O'Sullivan's amendment. The effect of amendment No. 7 to the Government amendment is that the court, in respect of all abuse which occurred before the date of the passing of this Bill, will be required to ignore the disability rule contained in the Bill and to regard such abuse as automatically actionable. On that basis there would be no need to prove the abuse was of such significance that the person's will or ability to make a reasoned decision to bring the action was substantially impaired. That would mean abuse which arose before the passing of the legislation would be treated on a different basis to abuse arising after the passing of the legislation. There are serious difficulties with that approach because it would create major discrimination between certain classes of persons and abuse on a basis that is unsustainable.

The changes we are now proposing in limitation law have a close analogy with those introduced by the 1991 Act which, as I mentioned earlier, introduced the concept of discoverability to the limitation period in personal injury cases. As I also mentioned earlier, on that occasion provision was made ensuring the new provisions would apply to causes of actions accruing either before or after the coming into effect of the provision. The same law applied irrespective of whether the cause of action arose before or after the passing of the legislation and each case would be decided on its merits. This followed a Law Reform Commission recommendation to this effect. The Government amendment makes an analogous provision in subsection (2) of the new section. However in the context of the recommendations that gave rise to the 1991 Act, the Law Reform Commission did not recommend a provision along the lines now proposed by the Opposition amendment.

Whenever one introduces a new provision, some people will feel hard done by because they have missed out or because they might have benefited from the provision if it had been introduced earlier. This will happen no matter where one draws the boundary. The objective of the Bill is simple. It is to ensure that persons who have a cause of action in respect of sexual abuse in childhood are not barred from bringing that action on the basis that they were unable, because of the particular characteristics of the injury inflicted on them, to bring themselves to introduce proceedings within the normal limitation period. To go further than that and apply one rule to causes of action which arose before the passing of the Bill and another rule to causes of action arising after the date the Bill is passed would be wrong in principle. I am unable to do that and I will not support these amendments which are wrongly conceived.

Deputy Higgins's amendment No. 8 to amendment No. 2 differs in import from the other two amendments only in that it seeks to limit the application of the new disability rule in child abuse cases being created by this Bill to proceedings commenced within a one year window after the Bill is passed. The breach of principle which I oppose in relation to the other two amendments is no less objectionable because it is limited in this way. If I conceded to adopt Deputy Higgins's approach on the basis it would mitigate the situation of people who might feel otherwise hard done by, at the end of the year in question, it would be impossible in logic to answer claims for further extension of the window of opportunity in order to accommodate similarly those who, for various reasons, did not avail of it within the year and could therefore argue they were disadvantaged. This could continue, perhaps indefinitely.

Since the proposal is wrong in principle anyway, I cannot accept amendment No. 8 to amendment No. 2 for precisely the same reasons I cannot accept amendment No. 7. Its confinement to the one year period does not diminish its unacceptability.

Ms O’Sullivan

With regard to the last amendment, the Minister understands what we are trying to achieve. People who had the courage to confront child abuse and are outside the scope of this because they reported it to the gardaí are in effect now excluded from taking action. Could the Minister introduce proposals which might address our concerns? Our motivation is that we feel these people should not be excluded because they broke the continuity of their incapacity to act by confronting child abuse when legislation like this did not exist and were told in good faith they could not take action because of the statute of limitations as it then existed. My opinion stands in relation to physical and sexual abuse. I strongly believe physical abuse should be included in the primary Act. There is no way of knowing what the Law Reform Commission will recommend in the future.

With regard to amendment No. 6, is the Minister satisfied there is no danger of injustice if the term "unlawful" is not used? I take his point that there may be changes in the law which we cannot anticipate.

In relation to my amendment No. 3, I was concerned about the case of a person who would not know or would not be able to sue the perpetrator of the abuse. Is the Minister satisfied there is scope for such people to take action even though they might not know the name of their abuser? They may not be able to trace their abuser but if the abuse occurred when the person was within the care of an institution, the institution would have a responsibility. Is the Minister satisfied the legislation will allow that person to take action?

Mr. O’Donoghue

First I must correct Deputy O'Sullivan. The Deputy stated a class of persons is being excluded by this Bill. They are already excluded. This legislation is very specific and inclusive, not exclusive. It is not designed to exclude anybody. The people to whom the Deputy referred are already excluded and I have outlined in principle the reasons it would not be desirable to do as Deputy O'Sullivan suggests. I outlined that we will differentiate between classes of persons and in terms of abuse.

When one changes the law, naturally some persons will just miss benefiting from the change or will, by a narrow margin, be adversely affected by it. I have no doubt that was the position in 1991 when the changes in the statute of limitations came into effect. The limitation period, if calculated on the new basis of discoverability, would only recently have expired. No opportunity was provided in that legislation for such people to reopen their cases or commence proceedings as if there was a general disapplication of the statute of limitations. That was correct in principle and in the directly analogous proposal in this Bill, it would be similarly wrong in principle to make the change suggested by Deputy O'Sullivan.

With regard to amendment No. 6 and the danger of an injustice, I am satisfied the legislation, as published, will not cause injustice. With regard to the scope for an individual to take a claim without identifying the abuser, I presume Deputy O'Sullivan is referring to the possibility of a person taking an action against somebody with vicarious liability. It is possible, within the terms of the legislation, for such a person to take an action against the institution concerned.

Mr. Higgins (Mayo)

Could the Minister again tell the committee the reason he is including only sexual abuse? Why does he segregate sexual abuse from physical abuse? Can he not see the impact on the victim, the residual effects, the suffering involved, etc, where youngsters are beaten black and blue on a daily basis over a period? This has come very much to the fore as the hidden Ireland has thrown into public view, its skeletons from industrial schools, orphanages and some homes. Children were physically and psychologically marked for life. Why is it not possible to include physical abuse in this? The high profile cases which gain attention and grab the headlines are, invariably, sexual abuse cases. However, the physical abuse cases have an equally real impact. They do not attract the same amount of headlines because they are competing with the more attention grabbing child sexual abuse cases. Why is the Minister deliberately deciding not to include physical abuse in this Bill?

Mr. O’Donoghue

I made it very clear, throughout my contributions on Second Stage and this afternoon, that the issue of physical abuse is neither part of nor excluded from the Government's plans. It has been referred to the Law Reform Commission, as the appropriate body to study and tease out the many legal complexities involved here. It is very difficult to define precisely what kind of physical abuse should be actionable and what constitutes physical abuse. It may be a very simple matter, in terms of every day language, but it is not a simple matter in terms of a court dealing with a case. The court would, obviously, have to be in a position to say what the parameters were.

The Law Reform Commission is the appropriate body to consider this. When it has considered it I will, without any question of doubt, act on its report promptly and pro-actively. However, I cannot introduce into law a measure, the appropriateness of which is doubtful. It is very important that I get it right. If I am to get it right, my best bet is to await the Law Reform Commission's report.

The issues are not as clear cut with physical abuse as they are with sexual abuse. Questions arise from the wide range of activities which, at one end of the scale, would have been classed, until not too long ago, as reasonable corporal punishment and, at the other end of the scale, would be unacceptable by any standards but may not affect the ability of the person to take legal proceedings at a given time. The Government's view is that it needs to obtain the advice of experts on whether, and to what extent, other forms of abuse are likely to have the inhibiting effect on the victim, long into adult life, that is known to occur in many cases of childhood sex abuse.

Some other jurisdictions have modified their laws in respect of childhood sexual abuse but not in relation to other forms of childhood abuse. Research is needed to glean knowledge from the experiences of other states which have taken a wider or narrower approach to the issue of limitation periods for various forms of childhood abuse. We must understand why different approaches have been taken in different countries, and apply the most appropriate reasoning which we obtain from that research to whatever changes we should make in our own law.

I am trying to get the best possible result, in terms of the legislation required. In taking the steps I have taken, I am doing the right thing. To do otherwise, would be a mistake. There is a possibility - and I cannot be certain of this - that the Law Reform Commission may return with proposals similar to those being put forward by Opposition spokespersons this afternoon. It is my intention to act promptly and pro-actively on its proposals. I have met people who were subjected to physical abuse of the most horrendous kind and their stories are quite horrifying. Appalling things appear to have happened to them. I stress that it is not my intention or that of the Government to be unsympathetic to their pleas for help. When the report is available, I will be true to my word and I will act on it.

Mr. Flanagan

The Minister's response to amendments Nos. 4, 7 and 8 to amendment No. 2 was somewhat disappointing. I wonder if these amendments could be included in the Law Reform Commission's terms of reference for its further deliberations.

The Minister spoke earlier about not excluding anybody. Rather, he is not prepared to include classes of persons, as he described them. In an attempt to deal with the type of situation we are talking about, I will dwell, for a moment, on one such class of persons, specifically people who suffered horrendous sexual abuse, to use the Minister's terminology, in school at the hands of a teacher, an official of the State.

Such matters were not acted upon because of the climate in the 1960s or 1970s, in school authorities or the State authorities - the Garda Síochána - which dissuaded victims from taking matters further at that time. In the current more open climate, many of the scandals we tolerated for many years are being brought into the open, including the question of physical and sexual abuse at the hands of teachers.

Teachers, who were guilty of the most horrendous crimes against young people, are now in a position to walk into a District Court, having been charged with abuse, present themselves on a plea of guilty and receive a sanction that may be considerably less than that which they deserve - perhaps a suspended sentence or a mere fine. They can do so in the knowledge that, because of our Statute of Limitations, they will never have to provide an answer to their victims. They can plead guilty, without an apology or any element of remorse on their part, in the knowledge that they have no accountability to their victims.

We are discussing the Statute of Limitations legislation for the first time since 1991. We have an opportunity to provide these victims with a remedy, by accepting the amendment tabled by Deputy O'Sullivan, or that tabled by Deputy Higgins - which proposes a year, which is quite reasonable in the circumstances - or mine. However, the Minister is refusing to accept that this class of persons is entitled to any remedy under the civil law. That is wrong and unjustifiable.

The Minister's argument rings very hollow in the ears of those victims and their families, who now look to the State to provide them with a remedy for what was inflicted upon them, often in circumstances where the State refused to act and can, itself, stand accused of a breach of duty, in terms of the manner in which some of our schools and other institutions were run. I regret that the Minister is refusing to provide these people with a remedy. I hope that, at the very least, he will ask the Law Reform Commission to consider how these persons might be afforded a remedy, notwithstanding the point of principle he put forward today, which I find unacceptable.

Mr. O’Donoghue

With all due respect, I think Deputy Flanagan is misrepresenting the situation. The position is that people who did not have an action before and who could not take an action in the courts, are being given an opportunity to do so under this legislation which is progressive. It would be quite extraordinary if we had a situation where there would be a difference between people who are encompassed by this legislation, in terms of the fact that it occurred subsequently, and those who had no course of action prior to the enactment of the legislation. Deputy Flanagan is effectively saying that there should be a difference between classes of person and certain classes of abuse. That is not tenable. One cannot say to one person that they have to prove that the abuse was of such significance that their will or ability to make a reasoned decision was substantially impaired, yet say to another person that they do not have to do that at all. That would be quite extraordinary. It is not something that could stand up to any logical scrutiny. I do not accept it and I cannot do so because it would be completely wrong in principle to allow such a thing to happen. The Deputy is effectively saying that it should be easier for one class of person to take an action, and I do not accept that. I do not think that I should provide for that in legislation and no responsible Minister would do so.

Mr. Flanagan

At the same time the Minister is excluding classes of person who have court decisions on the record to show that they were victims of abuse. These people have no civil remedy against the perpetrators of such abuse. They are appearing in the District Court and——

Mr. O’Donoghue

No, I am sorry Deputy. They are already excluded by other legislation. I am not excluding anybody.

Mr. Flanagan

Yes, but the Minister has the opportunity——

Mr. O’Donoghue

The objective of this legislation is quite different to what the Deputy is saying. He is misrepresenting the position. This legislation gives an opportunity to take an action to people who did not have that opportunity before. That is the position.

Mr. Flanagan

The Minister is playing with words to a huge degree in so far as he is saying that he is not excluding anybody by virtue of not including them. If someone is not included, they are excluded.

Mr. O’Donoghue

But I am including people. That is what the legislation is about. The Deputy is trying to create a difference between classes of person in legislation. That is discriminatory and I cannot do it.

Mr. Higgins (Mayo)

But is that not what the Minister is doing in relation to sexual and physical abuse?

Mr. O’Donoghue

In all honesty, Deputy, let us be fair about it. That is not a fair statement. I have explained fairly and squarely what I have done in terms of physical abuse and I have explained the why and wherefores and everything else. I am rather surprised that the Deputy now says the situation is different. Let us not misrepresent the situation. This legislation, which was proposed by Deputy O'Sullivan, was accepted by the Government because the Government agreed with it in principle. I have always indicated that where legislation is forthcoming from the Opposition - and where it is worthwhile, as this legislation is - I am prepared to accept it and to make any changes that are required in order to ensure that the Bill is effective. That is precisely what I have done in this instance. Please do not paint the legislation as being anything other than progressive. This legislation is important and it is progressive.

Ms O’Sullivan

The legislation includes people who were previously excluded under earlier legislation. We are seeking to include other people who were not included in this legislation by virtue of the fact that they have already taken moves to identify the fact that they have been abused. We are seeking some mechanism whereby we can include those people and allow them to take a civil action because of child sexual abuse, in the way that those who have not initiated any type of proceedings - or have not sought legal advice or drawn attention to the fact that they were abused - will be included. We are simply seeking to include in the legislation those who have taken some kind of action or who have made somebody aware of the fact that they were abused. We want to see if there is a mechanism whereby that can be done.

Mr. O’Donoghue

But that is the very problem, Deputy. I cannot conceive of a mechanism whereby it can be done without creating a difference between classes of person. In other words, it would, in effect, have different rules and I do not think this jurisdiction could tolerate that. We cannot have different rules for people. That is not on. I cannot conceive of any mechanism whereby we can achieve the objective which Deputies O'Sullivan, Flanagan and Higgins are seeking, without making a differentiation between classes of person. That is not something which should be done in legislation of this kind.

Mr. Higgins (Mayo)

We would generally acknowledge that the Bill as presented is a good one. This newly crafted Bill goes a long way towards meeting the intentions of Deputies O'Sullivan and Shatter. The Minister is certainly opening up the possibility for legal recourse and redress by people who up to now could not avail of it. However, while the Minister is including people who heretofore were excluded, we are objecting to the fact that the provisions are very limited, selective and narrow. We are seeking some recourse for those people. Effectively, the Bill penalises people for coming so early to a realisation of the seriousness of the crime perpetrated against them. They had the initiative to try to do something about it, but they have literally found themselves up against a legal brick wall because of the statute of limitations. That is proving to be an immovable impediment to their having recourse of any kind of civil remedy, as Deputy Flanagan stated. Therefore, the Bill rewards those who did not do anything while it discriminates against and penalises those who came to an early realisation of the matter and decided to do something about it. They have encountered an immovable object, the Statute of Limitations Bill, which lies in their way.

Mr. O’Donoghue

The implication of what Deputy Higgins is saying, not to put a fine tooth in it, is that if, for example, a person had taken an action before and if the action failed because of the statute, such a person should be allowed to reopen his or her case and have it reheard. There is also the fact that the rules would be different for him or her than they are under the class of persons for whom this legislation is intended. I do not think it is possible to introduce a civil law of that nature. It would be neither fair nor practical to have different rules for people.

Mr. Higgins (Mayo)

But they may not necessarily have gone to court. They may have gone to their solicitor and were advised that it was impossible and that there was no point in pursuing the matter.

Mr. O’Donoghue

The Deputy is now saying that we are going to have three different classes of person: those who are encompassed by this legislation, people who took an action and failed because of the statute of limitations and those who did not take an action. The implication of what the Deputy is now saying is that people who did not take an action at all should take precedence over those who did. There is a problem here. I accept the good faith with which the amendment is being put forward and I accept that everybody is trying to do their best, but it is not possible to do it with fairness. I have to be fair.

Mr. Flanagan

Surely the ultimate test of what is fair is the manner in which this matter can be faced up to by society. The Minister refers to different classes of persons and different rules. However, the reality is that these people have one thing in common. They are making allegations of abuse of a very serious nature against a person in authority and they wish to have the opportunity to bring a civil action in the courts, which is the only vehicle a society provides to give a person a remedy in a given set of circumstances.

While the Bill broadens and develops the categories of persons who may now be in a position to bring an action after the passing of this legislation, there is still a large number of people who are not included in the Bill. For the most part they are persons who are now being disbarred because they made an official complaint to the authorities at the time. That took a considerable degree of courage, but they are now being excluded. They will not be in a position to benefit from the legislation nor to extract an apology from those persons who were responsible for the abuse in the first instance.

Mr. O’Donoghue

Society's response is reflected in the Government's decision to establish the Laffoy commission, the allocation of funds to counselling services of health boards, etc., the publication of the national guidelines, the establishment of the social services inspectorate and the substantial funding that has been made available pursuant to the Child Care Act, 1991. However, this is concerned with people taking an action in respect of sexual abuse and the Statute of Limitations. It is not about society but about certain people having an entitlement to take actions. There is no fair, effective, practical, efficient or realistic mechanism for achieving the Deputy's objective. It appears that some of the Opposition Deputies are chasing moonbeams here.

Chairman

How stands the amendment to the amendment?

Mr. Flanagan

The Minister has conceded an element of unfairness here.

Mr. O’Donoghue

I did not say that. I said I do not have a fair way of doing what the Deputy proposes. I cannot conceive of a mechanism which would be fair. To that extent I said that some Opposition Deputies appear to be chasing moonbeams.

Mr. Flanagan

Will the Minister consult the Attorney General before Report Stage?

Mr. O’Donoghue

It does not matter who I talk to because the result will be the same. This matter has exercised my mind since I saw the amendments and I have consulted widely on them. I did not wake up this morning and decide to reject this amendment for the fun of it. I take the amendments seriously.

Mr. Flanagan

I did not suggest otherwise.

Amendment No. 1 to amendment No. 2 put and declared lost.

Mr. Higgins (Mayo)

I move amendment No. 2 to amendment No. 2:

In the second line of subsection (1)(a), before "committed" to insert "or physical abuse or both".

Amendment put and declared lost.

Amendment No. 3 to amendment No. 2 not moved.

Mr. Higgins (Mayo)

I move amendment No. 4 to amendment No. 2:

In the sixth line of subsection (1)(b), after "act" to insert "or acts".

This amendment is consequential on our efforts to include the word "sexual", even though the Minister has made a long eulogy on the interpretation of the single and the plural.

Amendment put and declared lost.

Mr. Higgins (Mayo)

I move amendment No. 5 to amendment No. 2:

In the first line of subsection (1)(i), to delete "that act" and substitute "any such act".

Amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 6 to amendment No. 2:

In the second line of subsection (4), to delete "includes" and substitute "means unlawful activity involving".

Amendment put and declared lost.

Ms O’Sullivan

I move amendment No. 7 to amendment No. 2:

After subsection (4), to insert the following subsection:

"(5) A person who institutes proceedings to which this section relates shall not be deemed to have acquired the will or ability referred to in subsection (1)(ii) on a date earlier than the date of passing of the Statutes of Limitations (Amendment) Act, 1999.".

Amendment put and declared lost.

Mr. Higgins (Mayo)

I move amendment No. 8 to amendment No. 2:

After subsection (4), to insert the following subsection:

"(5) For one year following the coming into force of this section, any person who heretofore was statute barred from bringing an action for an offence to which this Act refers, shall be able to process such action notwithstanding the fact that he or she ceased to be under a disability for more than six years prior to the coming into effect of this Act.".

Amendment put and declared lost.

Amendment No. 2 agreed to.

Section 2 deleted.

NEW SECTION.

Mr. O’Donoghue

: I move amendment No. 3:

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

"3.-Nothing in section 48A of the Statute of Limitations, 1957 (inserted by section 2 of this Act) shall be construed as affecting any power of a court to dismiss an action on the ground of there being such a delay between the accrual of the cause of action and the bringing of the action as, in the interests of justice, would warrant its dismissal.”.

Section 3 as read a second time would allow the court to strike out proceedings when they would give rise to a fundamental unfairness. The section, in effect, would allow the courts to strike out proceedings notwithstanding that they are within the strict limits of the Statutes of Limitation.

Under the operation of the law as it stands, I understand the courts have exercised a discretion to strike out proceedings where there is unreasonable or unconscionable delay. The section as framed could be held to be fettering or expanding that inherent discretion. This discretion should continue to exist under the law as it stands. To achieve this, the amendment proposes a replacement for section 3 which the parliamentary draftsman has prepared in a manner in which I am satisfied encompasses the various bases on which the courts have found themselves in the past in a position to exercise the inherent discretion to dismiss. The language used is such, however, that it cannot be read as creating a new parallel discretion. Deputy O'Sullivan has joined with me in tabling this amendment, which is of a technical character and I welcome the duet.

Ms O’Sullivan

Following discussion with representatives of the Minister I support this amendment. What is meant by the words "in the interests of justice"? Does the Minister consider it necessary to include them?

Mr. O’Donoghue

On first glance they appear to be superfluous, but the parliamentary draftsman inserted them and I do not feel qualified to tell him he is wrong. I would be inclined to leave them.

Mr. Higgins (Mayo)

Does the Minister not have a policy view on the matter?

Mr. O’Donoghue

It is not a question of policy but of pragmatism.

Mr. Higgins (Mayo)

How will this operate? Can the Minister provide a court model where a case would be dismissed using this provision?

Mr. O’Donoghue

There have been cases in the past where people have been tardy or slow in bringing an action.

Mr. Higgins (Mayo)

This allows the court to dismiss an action if it is deemed unfair to proceed because of the time lapse. Does it provide an unnecessary defence for perpetrators of abuse? What is wrong with putting someone in jail for a serious offence which was committed 30 years ago? Basically what the defendant is saying is that he or she agrees that something may have happened 30 years ago, which is a long time ago, but that he or she thinks it is unfair to make him or her a defendant at this point in time. This is enshrining an unnecessary defence in the Bill. I do not accept what may be implied here, that somebody may have had a memory lapse. If, for example, somebody committed a sexual offence of a serious nature 30 years ago, that is not something which would be easily erased from the perpetrator's memory, let alone the memory of the victim. Is he relying on a Supreme Court case? Are there precedents?

Mr. Flanagan

From my reading of the amendment, which has cross-party support, it seems the application of this section could result in the Act giving with one hand and taking away with the other in so far as it will allow for considerable argument to centre around the application of the section. What does the Minister have in mind by inserting it?

Mr. O’Donoghue

Deputy Flanagan will be well aware that courts already have the power to dismiss proceedings on the basis that it would be either unfair or unconscionable. There are circumstances which he can envisage whereby this has happened in the past and no doubt it will happen in the future.

It has nothing to do with offences. This is a civil law not a criminal law Bill. The position is that if a person is dragging his or her feet over a protracted period of time and if 30 or 40 years have passed, to take that example, or circumstances such as that arise, then the courts should have the discretion to say that it would be fundamentally unfair to proceed with this. Not to have the provision would be tremendously unfair.

It is not as if the law has been changed here. All we are saying here is that nothing in this Bill will have the effect of altering the courts discretion, which exists already. This seems fair.

Amendment agreed to.

Section 3 deleted.

NEW SECTION.

Chairman

Amendment No. 4 was already discussed with amendment No. 2. Is the amendment being pressed?

Mr. Flanagan

Yes. I move amendment No. 4:

In page 3, after line 27, to insert the following new section:

"4.-Any person instituting civil proceedings after the coming into effect of this Act shall not be deemed to have capacity within the meaning of the Act on any date prior to the coming into effect of this Act.".

On the basis that amendments Nos. 7 and 8 to amendment No. 2 were rejected, I am left with no option but to press amendment No. 4.

Amendment put and declared lost.

Section 4 agreed to.

TITLE.

Chairman

Amendment No. 5 was already discussed with amendment No. 2.

Mr. O’Donoghue

I move amendment No. 5:

In page 3, to delete lines 5 to 9 and substitute the following:

"AN ACT TO PROVIDE THAT CERTAIN PERSONS SHALL BE UNDER A DISABILITY FOR THE PURPOSE OF BRINGING ACTIONS RELATING TO ACTS OF SEXUAL ABUSE COMMITTED AGAINST THEM PRIOR TO THEIR REACHING FULL AGE, FOR THAT PURPOSE TO AMEND THE STATUTE OF LIMITATIONS, 1957, AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH.".

Ms O’Sullivan

I move amendment No. 1 to amendment No. 5:

In the third line, before "SEXUAL" to insert "PHYSICAL OR".

Amendment No. 1 to amendment No. 5 put and declared lost.

Amendment No. 5 agreed to.

Title, as amended, agreed to.