Commission to Inquire into Child Abuse Act, 2000: Motion.

Minister for Health and Children (Mr. Martin)

I move:

That, pursuant to section 4(4)(c) of the Commission to Inquire into Child Abuse Act, 2000, Dáil Éireann approves the draft order:

Commission to Inquire into Child Abuse Act, 2000 (Additional Functions) Order, 2001

a copy of which, in draft form, was laid before Dáil Éireann on Thursday, 17 May 2001.

Deputies will be familiar with the background to the making of this order. Initial concerns in this matter first surfaced a decade ago, raised by a number of former residents of children's homes. A number of vaccine trials which had been undertaken on children in care in Ireland in the 1960s and 1970s were brought to public attention in the early 1990s. A question was answered in the Dáil in May 1991 and in 1997 my predecessor, Deputy Cowen, promised to have inquiries made into the matter, following which he would consider what was the most appropriate course of action to take. The chief medical officer of the Department of Health and Children, Dr. Jim Kiely, was asked to investigate and his report, "Report on three Clinical Trials involving babies and children in institutional settings 1960/61, 1970 and 1973", was laid before both Houses in November 2000.

Trial No. 1, published in 1962, looked at what would happen if four vaccines – diptheria, whooping cough, tetanus and polio – were combined in one. At the time the standard approach was to administer tetanus vaccine – DPT – and polio vaccines separately, at different times and at different injection sites. Trial No. 2, published in 1971, was to find out if German measles vaccine, administered intranasally, could spread to susceptible contacts. Trial No. 3 was carried out during 1973 but was not published. It compared the propensity of commercially available batches of Trivax vaccine and Trivax AD vaccine to produce adverse reactions, as against the capacity of a modified equivalent vaccine to produce the same reactions. The modified vaccine had fewer organisms per dose.

From the moment I became Minister for Health and Children I have been aware of this issue. I have, on a number of occasions, met representatives of past residents of a number of children's homes and I am aware of and understand their anxieties in this matter. Following the publication of the chief medical officer's report, I arranged with the chief executive officers of relevant health boards that, where supporting documentary evidence is available, former residents could be immediately informed whether they were part of any of these trials. In addition, I have ensured that a counselling service is available from the health boards for any former resident of a children's home involved in such trials.

The chief medical officer's report indicated that the trials appear not to have had medically negative consequences for the children involved. The trials were looking at marginal degrees of difference in the vaccines administered, not at experimental, unproved or dangerous drugs. We must also remember that the protocols of the time are not necessarily those which apply today, more than 30 years later. From my reading of the chief medical officer's report I am not satisfied that it has been established that solid informed consent was given by the people who were entitled to give it. The issue of consent is fundamental. These children were in the care of the State and we must establish if the State fulfilled its obligations to them.

Having read the report with great care and discussed it in some detail with the chief medical officer, I was convinced that further investigations were warranted. The State must act to protect and safeguard the rights of all children in its care. Having considered the report in the context of available mechanisms for investigation, I decided that the most appropriate route for further inquiry would be through the Commission to Inquire into Child Abuse, chaired by Ms Justice Mary Laffoy. For that reason, in November last year, I referred the chief medical officer's report to the commission so that it could be considered as part its investigations.

The Laffoy commission offers the best mechanism available to us to probe these issues and to ensure that the totality of issues can be examined in an expeditious and rigorous manner. The commission has a full range of powers and personnel, an experienced secretariat, a strong panel of experts with the requisite qualifications and an investigative and legal infrastructure, all up and running. Much of what the Laffoy commission is currently investigating runs parallel in timescale to the chief medical officer's report, so the search methods for documents going back to the 1950s is already in place.

I am grateful to have this opportunity to thank Ms Justice Laffoy for having agreed to take on this additional task. At the time of referring the report to the Laffoy commission last November, some questions were asked about its capacity to deal with an issue such as this. At the time, the Attorney General advised me and the Taoiseach that the subject matter of the chief medical officer's report falls within the definition of "abuse" in the 2000 Act and that the commission has the competence to inquire into the vaccines report. Ms Justice Laffoy agreed with this view. While the issue of the commission's competency to investigate had been clarified to the Government's satisfaction by the Attorney General's advice, the Taoiseach and I also stated that the issue of whether the commission might require additional powers by way of a Government order to assist the inquiry into the vaccines report would be a matter for further consideration by the commission and that if such an order were deemed necessary it would be brought before both Houses for approval.

Subsequent communications between Ms Justice Laffoy and the Attorney General concerned the aforementioned question of additional powers which might be required by the commission to assist in its inquiries into the chief medical officer's report. It was ultimately agreed between the commission and the Attorney General that any possible conflict of interest difficulties on the part of the current membership of the commission, presented by the vaccines report, could be resolved by the expansion of the commission. The proposed expansion of membership will facilitate the commission in its investigation of the vaccines report and my Department is currently working with the Department of Education and Science with regard to the selection of an appropriate nominee. I expect to be in a position to agree a suitable nominee with the Minister for Education and Science within the next few days.

During the course of discussions between the Attorney General and the commission, Ms Justice Laffoy also requested that, for the purposes of clarity and certainty, the parameters of the inquiry into the chief medical officer's report be incorporated into a Government order. The Attorney General agreed with this approach and suggested a Government order in this regard. My Department was advised of this conclusion in February this year and the drafting of the proposed order commenced shortly thereafter. Consultations subsequently took place with the commission itself, the Attorney General's office, the Department of Education and Science and the parliamentary counsel's office, following which the draft order was submitted for Government approval earlier this month and laid before both Houses last Thursday, 17 May.

The purpose of the draft order is to define the parameters of the commission's inquiry into the vaccines report. The Government may, under section 4 of the Commission on Child Abuse Act, 2000, by order confer on the commission and its committees additional functions or powers connected with their functions and powers. The pro posed order provides for additional functions to be conferred on the commission as follows: to inquire, through the investigation committee, into the circumstances, legality, conduct, ethical propriety and effects on the subjects thereof of – (i) the three vaccine trials referred to in the report and (ii) any systematic trials of a vaccine or the mode of delivery thereof to test its efficacy or to ascertain its side effects on a person found by the investigation committee to have taken place during the period commencing on 1 January 1940 and ending on 31 December 1987 and to have been conducted in an institution, following an allegation by a person that he or she as a child in the institution was a subject thereof; and to prepare and publish to the general public, in such manner and at such time as the commission may determine, a report in writing specifying the determinations made by the investigation committee in its report under article 4 of this order.

Under the provisions of section 4 of the Commission to Inquire into Child Abuse Act, 2000, a draft of the order must be laid before each House of the Oireachtas and the order shall not be made unless a resolution approving the draft is passed by each House. A resolution approving the draft was passed in the Seanad yesterday.

The issues raised in the chief medical officer's report require investigation by the Laffoy commission. These are important questions concerning fundamental issues of the rights of children in care and the nature of consent which needs to be asked in a context which offers the competence to thoroughly investigate the issues. The draft order and the proposed expansion of the commission's membership will allow the commission to progress matters without delay. I ask Members of this House to support the resolution.

Mr. G. Mitchell

I have some difficulties with the Minister's approach to this matter. He is neither statesmanlike nor parliamentarian in regard to his accountability to this House. We have witnessed this during Question Time when questions have not been answered and when they are answered – as in the case of a question for which I recently waited six weeks for a reply – the information is incomplete. The Minister still has not corrected the record on that matter but I expect he will do so in due course.

The Minister's tardiness extends to almost all of his functions. There is such a high number of reviews, committees and inquiries under way in the Department – I calculated a figure in the region of 58 – that civil servants do not appear to have the time to compile replies to parliamentary questions. The Department of Health and Children will soon have the biggest budget and greatest expenditure of all Departments – this may already be the case – yet the Minister constantly complains about the number of parliamentary questions tabled.

I raised certain concerns when this issue was previously debated in the House. On 9 November 2000, I stated:

By sending the report to the Laffoy commission, the role of the Department of Health and Children will be lost in a welter of detail. It is to Dáil Éireann that the Minister for Health and Children, his Department and agencies must account. For that reason alone, the report should be examined in detail by the Oireachtas Joint Committee on Health and Children which should have powers to send for persons, papers and records and to compel the attendance of witnesses. The committee was led to believe that the report would be sent to it and that the Department of Health and Children, an actor in this saga, should itself decide where the report goes raises serious questions. This is a smoke bomb, a three card trick. The Minister for Health and Children is buying cover for himself and his Department at the expense of the reputations of people who are certainly not in the category of child molesters or physical or sexual child abusers. I have no doubt that many of the people mentioned in the report have questions to answer and, in all this, we must be centrally concerned about the former residents of the institutions, the children to whom the report refers. However, I contend that their rights, needs and best interests are also being abused by the Minister referring the report to the Laffoy commission which is dealing with abuse per se.

I proceeded to cite the responsibilities with which the commission had been charged which included the establishment of as complete a picture as possible of the causes, nature and extent of the physical and sexual abuse of children in institutions. The commission was also charged with affording victims of abuse in childhood an opportunity to tell of the abuse they suffered to a sympathetic and experienced forum.

According to the Minister, the clear view of the Attorney General and the commission's chairperson is that the commission has the competence to investigate the vaccines report. However, Ms Justice Laffoy suggested it would be helpful, for the sake of clarity, if the terms of reference of the commission's investigation into the vaccines report were to be incorporated in a Government order. This course of action has been agreed following consultation between the commission and the Office of the Attorney General.

The Minister, in his speech, slipped in some words on which I would like clarification. He stated:

At the time of referring the report to the Laffoy commission last November, some questions were asked about its capacity to deal with an issue such as this. At the time, the Attorney General advised me and the Taoiseach that the subject matter of the chief medical officer's report falls within the definition of "abuse" in the 2000 Act and that the commission has the competence to inquire into the vaccines report.

I draw particular attention to the use of the word "competence". The Minister continued:

It was ultimately agreed between the commission and the Attorney General that any possible conflict of interest difficulties on the part of the current membership of the commission, presented by the vaccines report, could be resolved by the expansion of the commission. The proposed expansion of membership will facilitate the commission in its investigation of the current vaccines report and my Department is currently working with the Department of Education and Science with regard to the selection of an appropriate nominee.

What effect will expanding the commission at this stage have on the preliminary work it has already carried out? Could somebody go to the courts in the future and argue that all members of the commission were not involved in the report from start to finish, thereby leading to some or all of its findings being set aside?

What is behind the reference to a conflict of interest? There is no detail in that regard. To what specifically is the Minister referring? Where does the possibility of a conflict of interest arise? Is it the case that an existing member of the commission may be in a conflicting position? To what does it relate? If there is potential for a conflict of interest in the commission, perhaps the issue should not be referred to that body. I ask the Minister to specifically explain the reference because it is not clear.

The Minister has developed a persecution complex. He does not appear to realise that this is an adversarial system. He has a huge Department which, of all Departments, will have the largest budget this year. It has a huge number of civil servants, PR people, consultants, drivers, aides and assistants. My job and that of Deputy McManus is to prosecute the Minister on behalf of the Fine Gael Party and the Labour Party in opposition, but we do not have anybody to assist us. Our job is to prosecute and test the Minister, ask him questions and hold him accountable. Deputy McManus can speak for herself – she is capable of doing so eloquently – but the Minister does not extend to me the courtesy I deserve as the Fine Gael Party's spokesperson on health. For example, the medical manpower report was given to all and sundry. It was leaked several times and then published. However, nobody had the courtesy to send me a copy. I recently received one from the Department although I had already received one from another source in the meantime. These are basic courtesies.

The Minister does not accurately answer questions in the House and it takes six weeks to answer questions that should be answered in three days. For example, I tabled a similar ques tion to every Department and most replied in three days.

Mr. Martin

Most of them.

Mr. G. Mitchell

I shadow the Department of Health and Children where everything is done by PR. The Minister denied that he was responsible for the leak in The Irish Times this morning. However, he was responsible for the leaks in the Sunday newspapers the day before the Ballymascanlon meeting. He briefed widely on the issues he intended to raise. Those who receive the least information are the Members of the House to whom the Minister is constitutionally accountable.

I will not tolerate this ball of smoke any longer. The gloves will come off if the Minister continues to use terms such as "infantile" as he did on "Morning Ireland" recently and other provocative terms such as the ones he used on "Prime Time" when he said the Opposition was making cheap jibes at him by asking reasonable questions. We will be forced to treat him with the contempt such responses deserve. I want accountability and the Minister to explain the reason it was necessary to introduce this order when he said previously that the Attorney General and the Government were of the view that everything was fine. What is specifically meant by the phrase "ultimately agreed"? Does it mean the commission would not accept the line offered by the Government? I also ask the Minister to specifically explain his reference to extending the commission because of a possibility of a conflict of interest. The House is entitled to know. It is my job to ask that question and the Minister's job to answer it.

Ms McManus

We were all astonished to receive notification that this matter would come before the House. It was debated last November and when I raised serious concerns on behalf of the Labour Party about the legality of the Minister's approach, plenty of reassurances were given. The impression was also given that everything was nicely set up and that it was a streamlined and efficient way to deal with an issue that had to be investigated because young children had been taken advantage of and used as guinea pigs. A commission is the best vehicle for such an investigation, although I do not have the same confidence in the Department and the Minister for Health and Children as I have in the principle of this type of commission investigation.

On 16 November 2000, I raised concerns that I considered needed to be addressed. Six months later, however, this item relating to the definition of additional powers is before the House to ensure the commission can carry out its work. This is unacceptable. It is not proper practice for a Minister to take a particular approach and indicate that it is the best way forward, but then leave it to languish because issues arose since then that are only now being addressed in the order. I pointed out at the time that there were dangers if the matter was not carried out properly and that ultimately it might not fulfil its capability or deliver on its objective.

I note the Attorney General's view that there are no issues around the definition of abuse. However, my view is that there are such issues, but the order granting additional powers gets around that problem and saves the Attorney General's face because nobody will have to admit that he or she is wrong. I refer the Minister to the points I made about whether injecting somebody can be considered an injury. I questioned that point strongly at the time. Personal injury is covered in the jurisdiction of the investigation and it appears, from a legal perspective, that there was a serious issue in that regard. I recall that one of the vaccines tested involved a nasal spray and it would be extremely difficult, even for the Attorney General who is very good at explaining points, to prove that the giving of a nasal spray to a child could be defined as a personal injury.

Nevertheless, six months later, we are dealing with an issue that should have been put to bed long ago. A curious element is the expansion of the commission. The Minister did not explain this point clearly and should do so. It appears there is now a need to expand the commission and select a nominee. However, the name of the nominee was not given to the House; that will be done in the next few days. I find it difficult to comprehend that the Minister for Health and Children does not appreciate the frustration and anger Deputies, who are democratically elected, experience when he operates in a way that means that information that is required is not provided.

Perhaps I am bruised and scarred after two evenings of debate involving flimflam and fairy tales, but the Minister has been extraordinarily determined to work around problems rather than face them, to avoid rather than give the hard answers and to avoid dealing even with relatively simple issues, such as this, in an up-front manner. Given this, it not surprising nobody believes him when he said he did not leak or cause to leak information to The Irish Times this morning. This approach is contrary to the direct answers Ministers for Health are required to give when dealing with such complex and difficult areas as health. They require attention.

From time to time we in the Opposition are more than happy to give our support, as I did in this instance, even when I was criticised by Fine Gael. We were happy to support the Minister on this issue but I am less than happy now in view of changes to be made that have not been fully explained. The issue of a conflict of interest has not been explained. I look forward to the Minister outlining how this is an issue here. He may say there is a potential conflict of interest but it is startling to find from his speech that it has become an issue.

We must remember the context in which this is being done. We are concerned with children who were in the care of the State but were, in effect, abandoned and left to be abused, both physically and sexually, by those who were supposed to care for them. This is a small part of that dreadful, tragic picture but it is one we need to learn from, not just for the sake of those children who have now grown up but for all those who are being cared for at present, including those in the hospitals who presume those caring for them have their best interests at heart. They should be able to continue in that presumption.

However, when the issue of what happened to women who were patients at Our Lady of Lourdes Hospital in Drogheda is examined – it is an issue I recently raised by way of parliamentary question – it is clear they were abandoned by the normal protections and safeguards people should expect to have. The outcome was devastating for them. Given this, there are lessons we must continue to learn and when learnt, we must ensure the knowledge is applied universally. Historically, when things happened to children and women they were not as important. Despite the enormous social and cultural changes in the country we should not presume those attitudes have gone. The recent history of Our Lady of Lourdes Hospital tell us something very significant.

The work of the Laffoy commission should equally inform us about practice today. It is, therefore, extremely important that this work is done properly and correctly. We appear to be getting an inquiry within an inquiry even though initially the Minister made a strong case that by giving this work to the Laffoy commission we could ensure there was a complete approach, that the system had been designed and agreed by the House. I supported that.

The issues raised by Deputy Gay Mitchell deal with openness, accountability and fair dealings by the Minister. For the last two months I requested a copy of the report of the Medical Manpower Forum from his Department but it was not sent to me. However, now, like the 84 bus, I have been getting a copy of the report every day. The report was published in January.

Mr. Martin

It was not.

Ms McManus

Will the Minister please accept what I am saying? The date of January is on the front cover of the report. Interestingly, no credit is given to the producers of the report. I contacted Comhairle when I had given up on the Department. It was issuing reports to people but it did not consider it appropriate to give me a copy as it took the view that the Department should have given me one. We know so much more about the health services today than we did yesterday, when there was a lengthy debate on them, because today The Irish Times has the knowledge and information this House was denied. In view of this, will the Minister ensure that when the bed capacity report is completed – the Taoiseach appears to believe it is already completed but the Minister says he has only preliminary information – Members of the House who are spokespeople on Health are at least accorded the respect of being issued with a copy of the report ahead of the press and media launch?

The Minister's record on this is very poor and this is the least he can do to rebuild trust. I supported him when it could have been politically opportunist to take another route but I chose not to do so. However, that respect has not been reciprocated. The fairy tales I had to listen to over the last two nights indicate how adrift the Government is. Despite being four years in power its main purpose is not to develop a health policy but to shift the blame around so that somebody other than the Minister is responsible for this mess.

The Minister for Finance is being painted as the bad cop while the Minister is being painted as the good cop. I do not accept that analysis. There is such a thing as Cabinet responsibility and the Taoiseach being a leader of the Government. It is remarkable that every time the issue of health is raised with the Taoiseach he tries to fob it away. The head is down as he indicates he is not the person responsible. He still thinks the health service is excellent and when any person criticises it he pretends it is the nurses who are being criticised. He cannot understand or accept that there is such a thing as leadership and responsibility for the health service and, most frustratingly, there is an historic opportunity which the Government has failed to grasp.

Mr. Naughten

I am pleased to have the opportunity to address this motion and I thank the Minister for referring it to the Laffoy commission. It is a positive step and is long overdue. Previous speakers have criticised the Minister on the basis that he did not act fast enough and that he should have published the report earlier. That may be so but it is now being brought to the Laffoy commission and will be investigated. That is a positive development which should be welcomed.

I will address the broader issue of the background to this abuse. These three trials were carried out because Welcome, the main manufacturers of the DPT at the time, were very concerned about reports of adverse reactions to the three-in-one vaccine coming from the Eastern Health Board. The Eastern Health Board was the main purchasing agent for the Department of Health and they distributed that vaccine throughout the country. In the early 1970s there were a number of reports to the Welcome Foundation from the Eastern Health Board expressing concern about the amount of adverse reactions to the vaccine. The main reason officials wrote to Welcome was fear of adverse publicity which could damage the reputation of the vaccination programme. That is an issue I will return to in a few minutes.

The basis for the trials was to improve performance and reduce adverse reactions and side effects of the Trivax vaccine. These included fever, fits and other more serious reactions like brain damage, as highlighted by the Kenneth Best case. A diluted vaccine was used in the trial to investigate the efficacy of the vaccine without causing adverse reactions. There are serious question marks hanging over this vaccine and its manufacturer, so much so that Mr. Justice Liam Hamilton, in the Best case, described Welcome as negligent and criticised the company's quality control procedures. Even some of the staff within Welcome questioned whether they should continue to manufacture the vaccine because of those adverse reactions and complaints. However, the batch administered to Kenneth Best was administered to at least 243 other Irish children in 1968 and 1969. The Department has not acted on this information and we still do not know if those children have been traced nearly two years later. A further 15 children were offered a once-off ex gratia payment in 1982 by the then Minister for Health, Deputy Michael Woods, of £10,000 due to the probability that they were brain damaged by the vaccine. It is also claimed in the report, which predated the decision to refer this to the Laffoy Commission, that the National Drugs Advisory Board did not raise any objection to the trials when approval was sought. However, the board did not even approve the Trivax vaccine until 1978 up to which point all that was required was a license to import it from the UK.

During the late 1960s and early 1970s there was an increase in the number of adverse reactions to the Trivax vaccine and a question mark over whether it should be continued. The Eastern Health Board was inundated with reports of severe reactions among children in 1973 and wrote to Welcome expressing its concern. While the records for the period are poor, it is a fact that three lots of the vaccine had at least 73 adverse reactions in the Eastern Health Board region, some of which required hospitalisation. There are many families who now hope the Minister will have the courage of his convictions and will carry out a thorough investigation into the Trivax scandal. The lives of those involved have been damaged through their use in the vaccine trial programme but those behind the initiation of those trials have yet to hear the truth and the families await a report on the whole Trivax issue. Serious questions have been asked of the Department and Welcome but neither organisation has been willing to give a full and frank account of its handling of the administration of the three-in-one vaccine. The only way to get to the full truth is if the records of the Department and the health boards are made available to an inquiry or Dáil committee so that these matters can be fully investigated.

It is sad, talking 30 and 40 years on, to see some of those children whom the parents are adamant have been damaged by the Trivax vaccine, some of them even more latterly. There are two distinct issues here and we have to be conscious of that. The question of the initiation of the trials in the 1960s and 1970s is one of manufacture and whether proper procedures were put in place. The legislation and regulations in place at that time were questionable and there was an onus on the Welcome Foundation to ensure that it adhered to good manufacturing practices. As to parents who claim their children have been damaged subsequent to that, we cannot dispute the statistical probability that children may have severe adverse reaction to a particular vaccine and may, in occasional cases, become brain damaged. Absolutely no scientific report will contradict that, so much so that in the United Kingdom, this time last year, a decision was taken to put a no-fault compensation procedure in place for such children, damaged in all probability by the administration of a vaccine. To the credit of the Department of Health in the UK, it has admitted a risk, though it may only be small, that some children may end up being damaged by the administration of a state-sponsored vaccination programme. They have a maximum cap of £100,000.

It is a huge worry for many of those parents today, many of whom are now becoming elderly, as to what will happen to their son or daughter after they pass away. God help the poor families that signed up out of sheer desperation in 1982 and 1983 and accepted the £10,000 once-off payment and final settlement in relation to any outstanding liability on the part of the Department of Health. That money would not have, and never will provide for what is needed for those children. The Minister should seriously look at what has been put in place in the United Kingdom because there are a number of instances where in all probability children have been brain damaged by a vaccination programme. If I could have the Minister's attention, just for one split second, to give him an insight into the three-in-one vaccine, I have here the report on adverse reactions to the Trivax vaccine the Irish Medical Board received. I am sure the same is true for other vaccination programmes. Thankfully many of those children fully recovered and there was no problem, but the principle is that these cases arise. There is no question of that, as the United Kingdom Government has recognised and, though we can argue about statistical probability, we should put in place a similar measure to theirs along with looking at the issue of the initiation of these vaccine trials. Those are two distinct courses of action.

Such action would help to ensure additional confidence in our vaccination programme and, as the Minister knows, there are also question marks over the administration of the polio vaccination programme. I hope we can get clarification as to how this out of date vaccine was administered to children because the Department of Health and Children and the health boards say they did not issue it. General practitioners say that if they administered out of date vaccines it was because they received out of date vaccines. Someone is at fault and parents deserve to know how this hap pened. That is a basic question which needs to be answered.

Mr. Shatter

I welcome the fact this matter is before the House today and that the terms of reference of the Laffoy Commission will be extended in the manner detailed by the Minister. However, I want to make some points about this and the manner in which the commission has been treated to date by the Government.

In 1997 when I was Fine Gael spokesperson for health and Deputy Cowen was Minister for Health, I raised the issue of children in residential homes in the State being used as guinea pigs in the trial of pharmaceutical products. While I welcome the fact the motion is in the House today, I question why it has taken four years for this matter to be given to any form of commission of inquiry. I am aware of the report into the issue which was published. I agree with the Minister who said he is not satisfied from the information available that any proper consents were given for the children concerned to be used in these trials. That indicates the need to have this matter better investigated. From everything I know about the background to this issue and from the report published, I share the Minister's concerns. I do not believe from the knowledge currently available to us that proper consents were given. These children were seen as the detritus of society. They were abandoned children who were sitting in a residential home and who could be used to the benefit of pharmaceutical companies in the trials undertaken. It is a disgrace and one of the many revelations of scandal concerning the manner in which our residential homes were run, the lack of supervision and controls and the failure to acknowledge the need to ensure that when children were in a residential home or institution, either under the care of the State or totally or partially funded by the State, proper standards were maintained.

Perhaps the Minister could clarify whether the powers being given to the Laffoy Commission will entitle it to require the pharmaceutical companies responsible to attend before it and to give evidence if the commission seeks it. I want the Minister to give us an assurance that the new scheme for the payment of legal expenses or legal aid for those who come before the commission will not be extended to the pharmaceutical companies which profited from the use of children in trials. I want the Minister to confirm that the scheme for the payment of legal expenses will apply to persons who may now wish to give evidence to the commission of inquiry.

It is worth noting – it was a view expressed on this side of the House – that a motion was required to be passed in this House to give the commission of inquiry these powers. The Minister side-stepped that issue by saying that he, his Department or the Attorney General's office did not think it required a motion. However, Ms Justice Laffoy, who is an eminent and competent member of the High Court Judiciary and who is the chairman of this commission, indicated that she thought it was necessary for a motion to be passed. The fact there was disagreement about this has further delayed this issue going within the remit of the commission. The disagreement was regrettable. What we are dealing with today should have been dealt with many months ago.

I want to say something about the functioning of the Commission to Inquire into Child Abuse. Just over two years ago the Taoiseach, on behalf of the State, apologised to the victims of child abuse for the State's neglect of them as children when they were in residential homes as a result, in many instances, of State intervention to take them into care. The manner in which the commission to inquire into child abuse has been treated by the Government is a scandal and a disgrace. This commission, which has been in place for a substantial period of time, has been prevented from undertaking much of the work which falls within its remit by the Government's utter failure to address issues directly relevant to it carrying out its work. It took until May of this year for a scheme for the payment of legal expenses to be finally agreed with the Department of Education and Science which would extend to the victims of abuse the facility to be legally represented and assisted in presenting their circumstances and traumas to the commission of inquiry. Why did it take this long? I do not understand why it took this long.

In the context of the commission's own work, it indicated the importance of providing a scheme of legal aid for these people who are already victims of the State. On 20 July 2000 the commission adjourned its sittings to facilitate a scheme to be put in place. On 26 September 2000 the commission held a further public sitting and detailed the necessity to put such a scheme in place. The commission in an interim report, which has become available only this week, details the fact that it took in the region of ten months for the Department of Education and Science and the Government to make a decision on and adequately address this issue. We only now have the scheme available. That clearly indicates the hollow words expressed by the Taoiseach in his apology two years ago. There has been a total failure by the Government to recognise that the serious issues arising as a consequence of the scandalous abuse of children within our residential institutions deserved, when we finally got around to recognising the need to deal with them, to be given a priority by Government. However, they were not. It is like everything else with which this Government deals in that eventually a decision meanders through a bureaucratic system. As a consequence of the Government's failure, the work of the commission has been put back by 12 months.

We also have Government proposals for the provision of compensation for the victims of abuse. Many of the victims of abuse made it clear that they wished the commission to have a com pensation function. I want to make a declaration of interest, which I have made in this House on a number of occasions when addressing these issues. My law firm represents a small number of victims of abuse who wish to present their cases to the commission and who will be pressing claims for compensation. I have knowledge of this issue not just as a public representative but as a lawyer whose firm is dealing with such cases. I am not primarily dealing with them; another colleague of mine is doing that. I do not want any misunderstanding about whether I have an interest in this issue. My interest is to ensure that justice is done and that this House does it job properly.

It took the Government until March of this year to produce a draft proposal for compensation payments to be made. That proposal, which was published in March of this year, stated that the scheme would be established under statute with priority to be given to the enactment of the Bill with a view to its enactment before the summer recess, followed by immediate establishment of the compensation body. No Bill has yet been published or circulated. The legislation will not be passed before the summer recess. Just as the Government failed to prioritise the provision of legal assistance for the victims of abuse, it has failed to prioritise the publication of this legislation.

Victims of abuse do not want to find themselves in two different forums, having to give background details of the abuse they suffered. The scheme envisages that a different body from the commission of inquiry will deal with the compensation issue. This means that on two separate occasions victims will have to tell their story. I urge the Minister to ensure, in whatever Bill is ultimately published, victims do not have to describe their trauma twice. On page five of the draft proposal it is stated that, "a possible solution to this difficulty would be to provide that the compensation body be given an option to rely, in whole or in part, on a transcript of evidence given to the commission, and thus obviate the need for repetition of evidence." I urge the Government that a provision to enable matters to be so dealt with be contained in the Bill, when it gets round to publishing it.

Minister for Health and Children (Mr. Martin)

I thank Deputies for their contributions to the debate. From day one, I was of the view that the issues contained in the three reports deserved to be considered by a body which had the necessary competence and powers in terms of the compellibility of witnesses and discovery of documentation. The Laffoy commission was the obvious forum to take on board an investigation into questions that remained unanswered in relation to the conduct of vaccine trials. I regret that it has taken this length of time between the original referral of the report to the Laffoy commission, which occured last November, and the making of the order.

When I spoke in the House in November, issues were raised about the legal competence of the Laffoy commission to consider the report. Deputy McManus raised the issue of what constituted abuse. The Attorney General was very clear in his advice at the time. The definition of abuse contained in the Commission to Inquire into Child Abuse Act, 2000, clearly encompasses the activity alleged in the conduct of the vaccine trials.

It was also made clear in my speech on 16 November 2000 that the Attorney General had been informed that the Laffoy commission proposed to consider the issues raised by the report as a separate heading within its inquiry. The commission is considering whether an order under section 4(4) is necessary or appropriate to assist it in this respect. It is the Government's intention to fully consult with it on the issue, as envisaged by the Act, and make any necessary order under section 4(4). If any such order is made, it will require the approval of the House.

Mr. G. Mitchell

Will the Minister deal with the conflict of interest issue?

Mr. Martin

Yes. I will, if the Deputy gives me the chance to do so. In November 2000, we signalled that such an order may be necessary. The Attorney General's office and the commission have been in ongoing contact in the intervening period to work out the order and its drafting. The role of the Department of Health and Children will be encompassed in any inquiry that takes place. There is no agenda, particularly on my part, to protect anybody in relation to the issue. Deputy Gay Mitchell made a statement in November, which he has repeated today, suggesting a conflict of interest. There is no such attempt—

Mr. G. Mitchell

Will the Minister deal with the conflict of interest issue?

Mr. Martin

Many issues have been raised.

Mr. G. Mitchell

The Minister has only five minutes and is trying to talk out his time.

Mr. Martin

Will the Deputy let me speak? I will deal with the issue.

Mr. G. Mitchell

The Minister is not dealing with the issue.

Mr. Martin

I do not accept the sincerity of what the Deputy said. No deliberate discourtesies—

Mr. G. Mitchell

Why does the Minister not answer the question? The reason we need tribunals is that Ministers will not answer questions in the House.

Mr. Martin

I will make my contribution to the House in response to the contributions of Deputies, including Deputy Mitchell. If the Deputy only wants to engage in insults—

Mr. G. Mitchell

The Minister has five minutes in which to make his contribution and he is talking out his time.

Acting Chairman (Cecilia Keaveney)

Will the Deputy, please, allow the Minister to speak?

Mr. Martin

The Deputy is not giving me a chance to go through the many important issues raised. He will not dictate how I reply. There is no conflict of interest in terms of the current measure. Very serious issues have been raised by all the Deputies present, and all deserve a response, including the ones raised by Deputy Naughten which are significant in terms—

Mr. G. Mitchell

Why does the Minister not answer the question? He is talking out his time. This is the reason we are where we are.

Acting Chairman

Deputy, please.

Mr. Martin

The line the Deputy is trying to develop is completely without foundation. I have always shown great respect to the House. The Deputy is trying to introduce trumped up charges to every debate in the House. It is hype. The Deputy believes that if he throws enough mud, some will stick—

Mr. G. Mitchell

If the Minister does not answer today, I will raise the matter every day next week.

Mr. Martin

By all means, do. We have been asked by the Laffoy commission to expand its membership, particularly in the context of this vaccine. To avoid a potential future conflict of interest, the commission wants an additional person appointed who will be completely removed from the institutions and the vaccines area. The commission wants additional expertise to deal with the vaccination issue.

Acting Chairman

The Deputy should address his comments through the Chair.

Mr. G. Mitchell

We still do not know what the conflict of interest is. I am, therefore, left with no option but to come back to the House on the issue.

Acting Chairman

Is the motion agreed to?

Mr. G. Mitchell

No, it is not agreed to as the Minister has not provided the information required.

Question put and declared carried.

Dáil Éireann díospóireacht - Thursday, 24 May 2001