I move amendment No. 1:
To delete all words after "that" and substitute the following:
"Until such time as the Minister for Education and Science publishes a draft of the regulations proposed to be made by him under section 15 specifying the amount to be awarded in respect of various categories of abuse and injury suffered by children in residential institutions, Dáil Éireann declines to give a Second Reading to this Bill."
The Bill deals with one of the darkest periods in the history of the State. The intention of the Bill is to finally address the widespread physical and sexual abuse that was inflicted on many children in residential institutions in the State over many years. For decades the victims of this abuse have endured a silent and enduring nightmare. The crimes committed against them were ignored and excused. The State, on whose behalf these institutions operated, failed in its duty to uphold the most basic rights of children detained in these institutions. For many years the effective situation was that the rule of law stopped at the gates of these institutions. Appalling abuse was committed behind these gates and no action was taken.
A strange double think operated in society about the operation of industrial schools and reformatories. It would be wrong to think people did not know that at the very least appalling physical treatment was meted out to very many residents. This knowledge existed but was never detailed or investigated. For decades the human and legal rights of children sent to these institutions were officially ignored on a number of levels. The culture of the time, which automatically conferred unquestioning respect on religious orders and other authority figures in society, compounded the hurt and alienation of those victims. Not only did they have no one to whom to turn when suffering abuse in reformatories and industrial schools, but the legacy of this abuse was ignored by society in general when they left those institutions.
The children sent to residential institutions never had a chance. The State, religious bodies and wider society have a serious responsibility to face in this regard. In recent years some of the truth about what happened in those institutions has emerged. Paddy Doyle's book The God Squad broke the official silence around this issue for many decades. More information has come out in recent years and it is correct to say that the documentary shown on RTE “States of Fear” has played a significant role in bringing the reality of the horror inflicted on children in the past to the attention of the House, the Government and wider Irish society. The Laffoy commission is charged with reviewing and reporting on the dark history of childhood abuse. Its report is eagerly awaited.
The Bill before the House is another part of the package of measures to address the State's failings to protect its most vulnerable citizens in the past. It establishes two bodies, a residential institutions board to make awards and a residential institutions redress committee to function as an appeals body to review rewards. The Government and, in particular, its senior civil servants and legal advisers faced a very difficult task in establishing a mechanism to recognise and compensate victims of past abuse in State institutions. It was correct to separate the more investigative work being undertaken by the Laffoy commission from the most individual cases addressed by the Bill.
I have a number of criticisms and questions about the Bill. I will preface my remarks with an acknowledgment of the task that faced the Government in establishing a fair mechanism to deal with the abuses of the past. I appreciate that there is little international precedence for the process we have initiated and there is no easy blueprint available from other jurisdictions. The issues addressed by the Bill are deeply personal for hundreds of citizens throughout the State. I will be proposing a number of amendments on Committee Stage and will also be asking the Minister to respond to a number of points at the conclusion of Second Stage. I hope he will give serious consideration to contributions of all speakers in the debate. While we all recognise the difficulties involved in dealing with the issue and, given the regard and acknowledgment for the Opposition in addressing it, I hope there will be the same reciprocal approach on behalf of the Minister in terms of issues and questions raised by Opposition Deputies because no one has a monopoly of wisdom in this most complex matter.
I will now turn to the Second Stage amendment I have just outlined. Sections 14 and 15 refer to the setting down by regulation of guidelines for awards. These sections are a crucial aspect of the Bill. The mechanism outlined is fundamentally flawed and the House is being asked to pass legislation related to the compensation of victims of physical and sexual abuse in residential institutions without any knowledge of what the general guidelines for compensation will be. I do not object to the process for establishing these guidelines. The Bill outlines that a body of experts will be appointed who will report to the Minister on the amount of awards to be paid in different circumstances. My objection is that when the expert group reports the Minister will then make regulations regarding the level of award. These regulations will be laid before the Houses of the Oireachtas, but will not be debated by the House unless a motion specifically negating them is passed.
For a Bill specifically dealing with the compensation scheme to be passed by the House without any knowledge of the levels of compensation payable is wrong. The level of compensation is a crucial aspect of the Bill. Limiting the democratic scrutiny of the levels of compensation by introducing the scheme through ministerial regulation is not right. The amendment in my name seeks to delay Second Stage until the levels of compensation submitted by the expert group and proposed by the Minister are laid before the House and debated. This will not cause a long delay in the passage of the legislation through the House. However, it is a necessary and important step and I urge the Minister not to force a division on the matter and to accept the logic and rationale behind the amendment.
I now refer to a crucial aspect of the Bill, that is, the exclusion of day pupils. There is no basis for this decision in law. It has been motivated more by an attempt to limit the exposure of the State to the costs involved. In doing so the Minister has overlooked the genuine needs of those who suffered serious abuse in institutions which happened to be day schools but for which his Department had at least regulatory authority. The Taoiseach's apology applied to all those who suffered abuse. The Minister has already accepted that the Laffoy commission includes all who suffered abuse, regardless of whether the institution was residential or a day school. We know abuse took place in day schools which were under the authority of the Department of Education and Science. That Department paid teachers' salaries and was responsible for inspection. The State, therefore, has a clear liability for the serious abuse which took place in day schools.
The Minister's reply to several parliamentary questions on this matter does not stand up. He tries to suggest that because children in day schools went home to their parents in the evening they automatically had the protection of their parents. This line completely misreads the circumstances of the times about which we are talking. Does he not accept that in the Ireland of the 1940s, 1950s, 1960s and 1970s it would have been unthinkable for anyone to suggest that any authority figure, particularly a religious authority figure, had abused him or her? Any child would have been too frightened to even suggest such an occurrence. This line also denies the effect of child abuse on the victim which is, as we know, that it leads to deep fear and shame. Such an allegation, in the context of the culture of the period, would have been more likely to lead to more severe punishment rather than any investigation of the allegations made.
There are several well documented cases of serious abuse inflicted on children in day schools. We know that in primary schools 11 teachers have been convicted of sexual abuse while in secondary schools, five teachers have been convicted. Many of these abusers had multiple victims. The victims have already had to relive their appalling abuse by giving evidence in court in these cases. There can be no basis whatsoever for excluding such victims from a compensation scheme. I defy the Minister to come up with an acceptable basis for that decision. What possible justification can he give for forcing these victims to go through the trauma, expense and heartache of a further court case in a civil suit? The overriding principle in any approach to redress must be to ensure no further harm is done to victims but it seems this principle has been dispensed with in the case of pupils of day schools. It is clearly wrong that people who suffered serious abuse while in schools funded by the Minister's Department should be excluded like this.
In announcing this Bill the Minister has already identified why conventional court proceedings are not in the interests of survivors of childhood abuse, including factors such as delay, uncertainty, publicity and costs. It should be possible, as a minimum, to include these survivors where abuse has already been proven in the courts and those who, by virtue of the amended statute of limitations, have commenced legal proceedings prior to the enactment of this Bill. Moreover, the conduct in question, child sexual abuse, was at all times a criminal offence and it follows, in natural justice, that the victims of such crimes should not be at any loss whatsoever.
In view of the fact that the abusers were paid from public funds, there is a clear moral obligation on the State to provide compensation for their victims. The excuse that schools were, overwhelmingly, privately owned, as the Minister has said in reply to parliamentary questions, is a complete distortion of the basis for this compensation scheme. The term "privately owned" means owned by the hierarchy, in the vast majority of cases the Catholic hierarchy. The redress scheme, as presented in this Bill, is a joint attempt on the part of church and State to provide redress to those people who suffered abuse while in their care and it is very disingenuous on the part of the Minister to attempt to pass the buck in this manner. I strongly urge the Minister to rethink this aspect of the Bill before he compounds the grievous wrongs done to many survivors of sexual abuse in day schools. I will table amendments on this aspect on Committee Stage.
In the context of the exclusion of day pupils from this compensation scheme, the Minister is aware that many of the victims have already made it clear they will not participate in the Laffoy Commission until such time as they are included under this redress scheme. The intention of the Laffoy Commission is to carry out a thorough inquiry into our dark past in this regard and to come up with an account of what happened at the time. That is central to coming to terms, on behalf of the State and on behalf of the many survivors of the institutions concerned, so that we have a clear account of the facts of what actually happened in that period. If we do not have the participation of the pupils of day schools in the Laffoy Commission, it will be an incomplete account. For that reason also, I urge the Minister to reconsider this matter.
I also seek assurances from the Minister that some other categories of survivors will be included under the terms of this Bill. There are many persons who, due to disability, were placed in orthopaedic hospitals and who, if they had not been disabled, would have been resident in industrial schools and reformatories. These hospitals were run by religious congregations in the main and funded by the State. I ask the Minister to confirm that these people will be included and, similarly, those people who were placed in foster care by the State or religious organisations and whose foster parents were paid by the Department of Health. Survivors in this category sometimes endured sustained abuse by foster parents when they were still the responsibility of the State. Will the Minister now confirm that these people will be included?
The survivors who transferred from other institutions or were placed by the State or other bodies, sometimes religious organisations, in the Magdalen laundries, should also be included. We need clarification that those people will be included under the terms of this Bill. Many of the girls taken into the Magdalen laundries remained there after the age of 18 and many into old age. Although these women may have had the legal right to leave the laundries, they were certainly not aware of this right. They were not allowed to leave without the consent of the nuns in charge and there are many examples of women escaping and being brought back under police escort. While the Bill deals with childhood abuse per se, there is a clear onus on the State to make reparation to these women for the abuse inflicted on them in those laundries.
I now turn to other ways in which the State should seek to provide compensation to survivors, other than through the proposed redress board. First, the level of counselling is wholly inadequate to meet the needs of survivors. While counselling was promised, the reality has been that survivors' groups have had to fight for this all the way. Far greater financial provision needs to be made for these essential services. The motivating principle which should be followed by the Minister is that these people, who have already suffered horrendous trauma, should not have to suffer any further. The fact that survivors' groups have had such a battle to secure any level of funding for counselling services is an indication that that principle is just not being followed. Given the scale of the problems which the survivors' groups have had to deal with and the huge practical and logistical problems they have had to overcome, the Minister should, as a matter of urgency, look at the funding he has provided for these groups. There does not seem to be any logic to the manner in which that funding has been provided and some groups have lost out very badly through decisions made in the Department.
There is also a great need for practical help and support. This is particularly true in relation to vic tims who fled Ireland in an attempt to put behind them the abuses they had suffered. Many survivors ended up living in the UK, trying to cope with the devastating long-term effects of the abuse. Many of these people require assistance in accessing the commission of inquiry and the proposed redress board and many now wish to return home in their old age. That practical assistance should be made readily available to them.
The issue of educational deprivation is a major factor for many survivors. The devastating effects of childhood abuse, combined with the widespread use of child labour in industrial schools, often meant that the quality of the child's education was one of the main casualties of institutional life. The neglect of these rights to education resulted in many survivors being unable to take up good quality employment and had an extremely negative effect on many aspects of their lives. I urge the Minister to consider establishing an education trust to facilitate survivors to participate in second chance education as a means of compensating them for the many missed educational opportunities of their childhood.
I now wish to turn to the legal basis for this Bill, in relation to which a number of concerns have been raised. It is incumbent on the Minister to respond to those concerns and to clarify the position in that regard. It is the job of the Opposition to scrutinise proposed legislation and to ensure that it is constitutionally sound. I wish to raise a number of concerns in that regard. We all want to see redress being made as quickly as possible, we want to get this Bill passed and to have the redress board up and running. However, it is not in anybody's interests, particularly the interests of survivors, if we rush the Bill through the House and set up the board but then run into a constitutional challenge to the board some months down the road resulting in the board being delayed, possibly indefinitely. It is essential that we have absolute clarity on Second Stage on the legal basis for this Bill. We will deal with some of the legal aspects of the Bill on Committee Stage, but it would be helpful for the Minister to clarify a number of points now.
The approach that has been taken in this Bill is similar to the hepatitis C tribunal, it is an attempt at a no-fault compensation scheme. I wonder if that is the right approach. It was easy enough to establish such a scheme for those who had contracted hepatitis C. All the claimants had to do was to prove the presence of antibodies in their blood and the fact that they had once received a blood transfusion, both of which are capable of objective verification.
However, that bears no comparison to these circumstances. In this case, the idea of compensation being paid to victims of criminal abuse alleged to have been committed by what will in many cases be identified individuals without any notice to those individuals or requirement to repeat the allegations in front of those individuals and without any opportunity for those individuals to rebut the charges made against them, raises fundamental constitutional issues. Because we all want to see this compensation board operational as quickly as possible, the Minister must clarify those constitutional issues at an early stage.
The difference between the hepatitis tribunal and this one is that this is not a no-fault proposal. Fault is at the heart of it. If there was no fault, in the sense of culpability, there would be no cause for compensation and no need for a tribunal. However, what this tribunal proposes to deal with is fault as alleged and subsequently presumed and accepted rather than fault found as fact. The act is presumed and accepted to have been committed possibly by somebody who will be named who is not there and has no opportunity to contest the assertion. Essentially the Government seems to envisage a system whereby the name and reputation of an individual could be, and more than likely will be, defenceless against attack in a forum provided by the State because the allegedly guilty individual will not be there and will not be told what is being said against him or her.
I accept that constitutional rights are not absolute and sometimes balancing exercises are required. The net question is whether the vindication of the rights of those abused as children in institutions, inadequately supervised by the State, requires, in lieu of claims against the State litigated in the courts, the payment to them of ex gratia awards consequent on their having first made uncontested allegations, which would of their nature be likely to be controverted by those against whom they are made, to a tribunal that is not charged with rigorously and impartially investigating the truth of those claims and which does not afford any standing to those with an interest in disputing them. These are fundamental constitutional issues and the Minister must clarify them before we move to the next stage of this Bill.
It has been claimed from a number of sources that the Government has drifted into error in the details of the scheme as drawn up and that it is not possible to improve it by mere tweaking. It is also claimed that this proposal is fundamentally flawed from both a constitutional and a public policy point of view. If there is a basis for those claims, we need the Minister to give clarification on those as soon as possible.
We are told that under the provisions of the Bill confidentiality will be assured. What are the obligations of the members of the board and the members of the appeals committee in the event of them hearing of allegations of abuse carried out by persons who are currently involved in the provision of services to children where they may be posing an ongoing danger to those children. In other cases, people in State employment have a clear obligation to report. Surely we cannot allow those employed by the State as members of the redress board, who, in possession of information of individuals having abused in the past and knowing that those individuals may still pose a serious danger to children on an ongoing basis, not to have a legal and certainly a moral obligation to report that.
One of the main aspects in terms of dealing with institutional abuse is to ensure that we learn lessons from the past. That implies that we establish a level of accountability for those who have been the perpetrators of that abuse. I have serious concerns that the approach proposed by the Minister does not seek to establish accountability. What is proposed is a compensation tribunal. However it can be seen as an amnesty for those who were involved in abuse in State institutions. Putting it baldly, religious orders, by making a contribution to a compensation scheme, will ensure, through the provisions of the Bill, that those who suffered abuse will not take civil actions against their abusers. In my view that is an amnesty. It is not the right way to deal with past abuse.
Those who have carried out the abuse will not be made accountable and will not be required to be brought to justice. That is a serious flaw in the approach being taken by the Government. It will not add to our general knowledge about this era. If this process is to mean anything, it must bring to account those who inflicted such appalling abuse on the victims, establish a clear mechanism of accountability and provide assurances that such abuse will not happen in the future. It does not offer that assurance.
There are many questions raised by this proposal and there is an urgent need for clarification by the Minister on some fundamental aspects of it. I look forward to his summing up and I will be tabling amendments to cover the issues raised on Committee Stage.
