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Dáil Éireann díospóireacht -
Wednesday, 1 Oct 2003

Vol. 571 No. 2

Commission to Inquire into Child Abuse: Statements.

I welcome the opportunity to address the House today on the Commission to Inquire into Child Abuse and related issues. I remind the House that the Government is the first in the history of the State to listen to the victims of abuse, to apologise to them on behalf of the State and to take positive action to redress the wrongs inflicted on them in the past.

I greatly regret that Ms Justice Laffoy reached the conclusion that she could no longer continue as chairperson of the Commission to Inquire into Child Abuse. I have previously indicated that Ms Justice Laffoy's resignation was a matter of considerable surprise to me and to the Government. I have expressed my thanks for the commitment Ms Justice Laffoy has shown in carrying out her role as chairperson and I am happy to repeat that appreciation in the House today.

The Commission to Inquire into Child Abuse is one element of the Government's strategy for redressing institutional abuse of children. It is a dual structure to meet the differing needs of the victims. The investigation committee carries out detailed inquiries, akin to trials, into allegations of abuse. This is the part of the commission that is currently being reviewed. The commission also has a confidential committee which hears, in total confidence, the accounts of abuse victims who do not wish to have their allegations investigated. It is for the victim of abuse to choose which committee he or she wishes to attend. The confidential committee continues to function and, at this stage, has heard the accounts of more than 700 witnesses, approximately two thirds of all those who applied to that committee. The only element of the Government's initiatives that is currently under review is the investigation committee of the commission.

When the commission was established in 2000 it was the Government's intention that it carry out its work free of the adversarial environment and legal formality of the courts and that it would be able to deliver its report within two years. That is what was promised to the survivors. As time went on it became increasingly obvious that this could not happen.

Following the final deadline for receipt of statements in July 2002 the commission indicated that the total applications to the investigation committee was 1,957. It then became apparent, given the rate of progress at the committee that if all these cases were to be heard individually the commission would not be in a position to deliver a final report for at least a further eight to 11 years. This timeframe was provided to my Department by the commission and was based on the resources it had at that time. A report by the commission in that timeframe would be far too late for many of those for whom it was established.

Concern about the progress of the commission was shared by survivor groups who urged my Department to take action to ensure that the report of the commission be delivered as soon as possible. They made the point to me and to officials in my Department that some of their members had already been waiting for 30 to 40 years for validation. They also outlined to me the number of people who had died since the Taoiseach had made his apology.

In addition to the long delay and the consequences of this for survivors of abuse there was also serious concern that publication of the final report would be challenged by alleged abusers claiming they did not have due process in a court of law.

The likely delays, the doubts about the ability to publish a full report and the real probability that the State would have to pay legal costs in the order of €200 million contributed to the necessity to review the investigation committee. There are those who say cost should not be a concern and that doing justice is beyond petty considerations of money. In my view cost has to be an issue and having regard to it does not prejudice having justice done. What has to be achieved is a process that delivers justice effectively, efficiently and, most particularly, without undue delay.

Once I had concerns about the operation of the investigation committee it was my public duty to bring them to the attention of the Government rather than allow the situation to continue unchallenged. The commission is the creation of the Oireachtas following proposals from the Government. It is my duty and that of the Government to return to the Oireachtas when we believe reform is necessary to achieve the objectives of the original legislation. That is what the review of the commission was, and is, about.

The purpose of the review is to find a way through which the mandate given to the investigation committee under the legislation can be carried out in a more efficient, cost-effective and timely way. As part of that process consideration was given to the issue of the additional powers that could be given to the investigation committee to facilitate its operation.

The first phase of the review was completed and a report submitted to Government. That report, contrary to what has been stated in the House by a number of people, was accepted by the Government and the recommendations contained in it are currently reflected in draft legis lation being prepared by the Office of the Parliamentary Counsel. However, following from that review, further amendments are being considered, which are likely to result in further changes to the way in which the investigation committee operates.

The Government also considers, in light of the Supreme Court judgment in the Meenan case and the current case taken by the Christian Brothers in the High Court, that it is prudent to have regard to those judgments in framing amending legislation.

Consultation with the main survivor groups is continuing. A number of meetings have been held with these groups, the latest of which took place on Thursday, 25 September. The meetings have been extremely constructive and useful to me in considering how best to proceed. There is a strong sense that we share a common objective, ensuring that the investigation committee can achieve its mandate in an effective and timely way. It is my intention that the revised remit of the investigation committee of the commission will be legislated for by spring 2004 and sooner if we have the judgments from the Supreme Court and the High Court.

The Government has appointed Mr. Seán Ryan SC as chairman designate to the commission. Mr. Ryan comes with a wealth of experience from his practice in law. In addition, he comes with very direct experience of the issues of past child abuse, having chaired the compensation advisory committee. This committee drew up recommendations for financial awards to abuse victims under the residential institutions redress scheme. Mr. Ryan also acted as counsel to the Ferns inquiry. I assure Mr. Ryan and the House that my Department will continue to give every assistance to the commission in carrying out its mandate.

He had better watch his back so.

The Government has requested Mr. Ryan immediately to undertake his own independent review of the operation of the investigation committee. This review is to be completed within a period of eight weeks. Should it identify a requirement for further amendments to the legislation they will be considered by the Government.

Originally, it had been intended that the redress scheme would follow on the completion of the work of the commission. However, it became clear that the lack of a scheme was seriously impeding the work of the commission. The Government moved to establish a redress scheme and the necessary legislation was enacted last year. The redress board was formally established in December and it has received 2,000 applications for redress. To date, it has processed almost 200 of these cases.

There is continuing comment about the agreement reached with CORI in respect of its contribution to the redress scheme. It should be made clear that before any agreement was made with CORI on its contribution to the scheme, the Government had already decided that a redress scheme would be established regardless of any contribution. It was better for the State that congregations make a contribution to the scheme than have them make none at all.

Some commentators have argued that there should have been an agreement on an even split of the costs of redress. No one can say exactly what proportion of liability should fall on the State and what should fall on the religious congregations. The only way strict legal liability could be determined was by putting every single case through a full court procedure, which is unacceptable from a victim's point of view. There are comparable circumstances in Canada where, based on court decisions in civil abuse cases, the state was held to have the greater liability. Since then, the state has agreed to accept responsibility for up to 70% of the cost of awards. The church authorities have accepted a liability for 30% but that has been capped at a total of Can$25 million.

In our case, the State would have to bear a significant amount of liability, bearing in mind the following: in many cases of abuse, the abused children had been taken away from their homes by the State and put into the care of religious and others who abused them; in many cases, State agencies knew or ought to have known that institutions were being run using abusive regimes; some institutions covered by the redress scheme were run by the State and therefore the State was 100% liable for those cases; and in many cases the State turned its back on its responsibility to cherish the children of the nation and left many children in the custody of institutions which did not care for them properly. It is true that in cases of sexual and severe physical abuse, the State would have a reduced amount of legal liability because it had no way of knowing that this kind of abuse was taking place. However, these are the minority of cases.

It is noticeable that those criticising the redress scheme and the indemnity agreement have offered no alternative to the course of action followed. I assume this is because the only alternative to the agreement would have required the State and/or the victims to sue the congregations through the courts. This was unacceptable from the victims' points of view for the following reasons. They would have to face traumatic cross-examination by lawyers. It would take many years for the courts to finish hearing the estimated 2,000 to 4,000 cases. Having gone through that trauma, the likelihood is that many of the victims' cases would have failed in the courts because of the lapse of time since the abuse occurred. At all times, the concern for the victims had priority in the Government's considerations. In addition to the concern for the victims, it was pointed out from a legal perspective that because much of the congregations' property is tied up in trusts it could not have been taken away even by the courts.

Furthermore, the only alternative to the agreement was unacceptable because congregations are not like companies and do not have separate legal personality and may not have liability for the illegal acts of members of the congregations. The legal fees would have been enormous. Additionally, some of the congregations which contributed had few or no claims against them while others had very many, and therefore the congregations with many claims might have been bankrupted long before all their victims were compensated. If any portion of liability falls on the State – even if it is only 1% liability – victims are entitled to recover 100% of their damages against the State. In order to recover the difference, the State would have to sue the religious separately, thereby starting another batch of thousands of court cases with no guarantee of success at the end of the process and further huge legal costs.

The mechanics of negotiating the indemnity agreement consisted of two elements, namely an agreement in principle on the amount of money the religious would contribute and detailed legal discussions on how the agreement would be worded. My predecessor, Deputy Woods, announced the Government's agreement in principle on the amount of the contribution on 30 January 2002. This was to be €128 million, made up of cash and property. He announced that in return for this contribution, the State would indemnify the congregations against court cases by victims. This indemnity covers only those cases which could go to the redress board and is not open-ended as some people have suggested.

After the Department had instructed the Office of the Attorney General about the agreement in principle, that office went about putting this policy decision into legal effect. The lawyers for the congregations proposed a draft agreement which was not at first acceptable to the State officials. Both sides argued for some months and many changes were made which were favourable to the State, including the following: a breakdown of the components of the €128 million contribution, which was much more favourable to the State at the end of the negotiations; a provision that the State can refuse any property offered by the congregations, which has occurred; if the congregations cannot offer enough suitable property, the remainder is to be made up in cash; a provision that if cases go to court instead of the redress board, the State will be able to direct the religious as to how they conduct their defence; and a provision that if the State wants to settle a case and the religious want to fight it, the religious will lose their indemnity.

What will the overall cost be? The hype surrounding the redress scheme is similar to that surrounding the Army deafness claims, which eventually cost the State far less than had been predicted by many. We do not believe the overall amount paid by the redress board will exceed the higher end of the original cost estimate of €508 million. The Government based its estimate on the number of people who signalled an interest in attending the committees of the child abuse commission, plus an allowance for those who would not attend the commission.

The Comptroller and Auditor General's report suggests that the number of cases will be greatly in excess of the number that the Government expects. He bases his belief on a complex series of assumptions and predictions but recognises that "any estimate of future liabilities arising out of the redress scheme is made in circumstances of uncertainty". As of now, 2,000 cases have been lodged. Only time will reveal the final outcome, but I am confident the overall amount paid out by the redress board will be closer to the estimate of €508 million.

In 1998 the Government embarked on a process to bring healing and closure to those of our citizens who suffered abuse while in institutional care. We have been true to our word and remain steadfastly committed to that cause.

As legislators, we are the custodians of a country and a people who lived through centuries of violence, war and terror. As custodians, we have a solemn obligation to investigate a vile episode of a generally proud national history, namely, the sadistic terror inflicted on children by their elders, teachers, carers in religious institutions, the respectable pillars of society and by their State-funded, State-appointed betters. In saying that, however, I can speak only for the Fine Gael Party. It is regrettable for those now-adult children and the country that the Government has no similar sense of public or moral duty. The Laffoy crisis has become another crude example of a Government inspired not by any higher calling but by rank expediency. It is a Government whose actions in so many areas of public life reveal it to be in terminal decline, unworthy of public office, shameless, leaderless, directionless and, in light of the Laffoy crisis, quite soulless.

I want to nail the lie that the Laffoy crisis is about cost as this is absolutely not the case. It beggars belief that a Government which is recklessly and ruinously losing the country billions of euro is seized by an attack of fiscal rectitude on this matter. The Laffoy crisis is not only about money, it is also a crisis of leadership and truth, neither of which can be found on the benches opposite.

In the handling of the Laffoy case the Taoiseach, who made a proper apology, has, as on so many issues, proved to be a weak chairman and not a chief. He and his Ministers have failed spectacularly to rise to what is a matter of national honour and deep psychological import. Relatively few issues in modern politics take us to that higher and more complex plane. The war in Iraq was one such, when the Government sold the country's soul, and it is doing it again with the Laffoy commission. If the country can afford the Flood, Mahon and Moriarty tribunals it can surely find a way to give those broken by the State the voice we took from them, the hearing we denied them and the comfort and compassion we refused them. To do less would damage these men and women, perhaps irreparably, and would demean our humanity and our nationhood.

To judge from the evidence to date, it is impossible for the Taoiseach to be determined on anything. Why does there appear to be some obstruction within the Government parties to the extent of being determined to deny these men and women their day? They are reasonable, heartbroken people with a deeply sensitive personal story to tell. Many, by their own admission, are barely hanging on. For too long they were a silent presence in our world. They were betrayed and they felt betrayed. We owe them, but instead of using money as a means of further State-sponsored violence to them, we need as a nation to give them their say and to ask their forgiveness. Like it or not, as a society, we are all culpable. We are all to some extent guilty. As adults in Cork and Dublin have testified, and will remember from their childhood, even the most idle threat of being sent to the Good Shepherds or Artane was enough to make them good children, not just for the day but for the week. So at some level we knew, yet we did nothing.

The Government, acting in our name, now has a chance to transform these people's experience of the State, to respect the totality of their story, recognise the immensity of their suffering and make reparation for the damage done to them in institutions run, to our deep shame, in the name of the people of this country. If it does, it can redeem the nation for its neglect of these children and its crime against their humanity. It can do so, but to its shame, and ours, it will not. Instead, it appears the Government intends to use the lie of costs to mediate these personal tragedies, this national disgrace.

The Taoiseach says he is sorry. He was right to apologise and to establish a commission of inquiry under the chairmanship of a person of the eminence of Ms Justice Laffoy. He was also right to give the investigation committee of the commission the mandate to carry out a "thorough and comprehensive inquiry". The commission was also to have available to it "the resources and all the legal powers and protections it needs to do this."

I do not have access to all the papers at the disposal of the Minister for Education and Science, but I had the privilege of being a Minister of State in the Department 20 years ago. I am aware of the internal difficulties in having files of any description brought forward. However, this does not answer the difficulties encountered by a person of the brilliance and technical forensic skills of Ms Justice Laffoy who says she was worn out by statements of contrition by the Department when, over a period of 25 months, she waited in vain for material to be produced she had requested on behalf of the commission. It beggars belief that the Minister did not use his direction and authority to ensure that the mandate outlined by the Taoiseach and established by this House was implemented, especially given that a number of those abused in the religious institutions referred to have passed on.

The Government said it would provide the necessary resources and facilities and allow the commission to carry out a thorough investigation, yet the person mandated to chair the commission felt obliged to resign because of what appears to be obstruction from within the Department under investigation. That is a terrible story. I do not know if the Minister will be able to address this aspect when he replies to questions raised in this debate.

Ms Justice Laffoy was a bright light in the High Court. She never said she could or would not do the job, nor did she say she was not able to do it. However, she made a series of proposals to the Minister outlining how the job could be finished. The response from the Government was inadequate. It means that a number of quagmires have arisen, including difficulties over the status of information given in confidence during the four years' work of the commission.

Is the new chairman of the commission to receive the same kind of treatment as Ms Justice Laffoy? If he submits a similar request for facilities to finish the job will the Government treat him in the same way it treated his predecessor? Is there to be an increasing number of statements of contrition but no action, or will the Taoiseach admit the Government got it horribly wrong and commit, this time in good faith, to making the inquiry work once and for all so that justice can be seen to be done for those who were abused and, in a minority of cases, those wrongfully accused of abuse? Their lives have also been consumed by this sorry state of affairs.

If the Government has trouble staying true to its word on this occasion it should remember an image from the series "States of Fear" that haunts every parent who saw it. It is of a small boy, perhaps five or six years of age, being woken from his sleep by his religious abuser. For most of us it is an image, but for others it is their childhood reality and a life sentence.

If the Government starts to lose its bottle it should remember that all this happened, if not with the benediction of the State then with at least the State's tacit acceptance that this was how it was. Surely, decades later, it is grossly immoral for the State to deny any of these children the chance to tell their truth, to relate their terrible story and, in some small way, to leave it behind. If the State denies them that right, it proves that we still feel nothing for them, have learned nothing from their experience and changed not one inch in our attitude to State-sponsored terror.

I understand that the concept of sampling referred to by the Minister, Deputy Dempsey, is no longer being considered. This is critically important. The Minister's example of a person having 57 allegations of abuse against him or her and it not being necessary to hear more than five or six of them is not valid. If the tenth or 15th were reported to the Department of Education and Science by someone in whatever year the alleged abuse took place and there was a cover-up or nothing happened, that is another scandal in its own right. If the deep-rooted need of these people is the opportunity to have their say, we must at least give them that.

Beginning immediately, the State through the Taoiseach and the Government must re-establish its credentials of compassion in the eyes of the abused, something about which they have heard a great deal but have yet to see. The State, through the Taoiseach and the Government, must allow those who knew yet did nothing to make some psychological, emotional reparation to the children they silenced and abandoned for the crime of being orphaned or having a widowed mother who did not live up to the high moral standards demanded by local matrons or concerned parish priests. The State, through the Taoiseach and the Government, must re-establish trust, restore confidence and do all it can to rebuild these shattered lives. The one sure way to do this is to give every one of the abused people their say.

We hear repeatedly how the public has lost faith in much of what passes for politics and government today. Judging by events this week, it is no wonder. Coming clean on Laffoy gives the Government an unmissable chance to restore politics in the public heart and imagination as something that can change matters for the better and is capable of believing in and doing the right and decent thing. The Government has that chance. The State once condemned these children to their fate. Is it now to deny them their destiny?

I wish to conclude by referring to the report of the Comptroller and Auditor General in respect of the central issues involved in the indemnity case to which the Minister referred. The report states that the State, in negotiating this deal with the religious orders and institutions, was on very weak ground on two central issues. The first related to information about the possible liability which would inform any demand for a meaningful contribution by the congregations. The second related to the legal advice and the implications of any indemnity agreed.

In light of the Minister's response to this series of statements, he needs to answer questions about what evidence exists in his Department as to why his predecessor did not answer a query from the Attorney General on this matter for ten weeks. Surely if that letter was received, acknowledged and to be acted upon, it should not have taken ten weeks for the Minister for Education and Science to respond to the legal adviser to the previous Government. That appears to be either gross incompetence or in keeping with the pattern of obstruction by the Department in supplying information.

When it was perfectly obvious the number of claims was rising and when initial discussions were based on 50:50 split on costs and liability, what evidence is available to the Minister as successor to Deputy Woods that the liability should have been capped at €127 million when, by April 2001, there were indications that it would be grossly in excess of that? Is the Minister prepared to go back to the religious institutions and inform them that, between the best estimate of the Department of Education and Science, which is about €700 million, and the Comptroller and Auditor General's report, which estimates that the liability could be €1 billion, there is a moral obligation on the institutions to revisit this issue which was finalised on the day before the previous Government went out of office?

The Minister needs to confirm that each person will have his or her say and that when the new chairperson of the commission, Seán Ryan, demands or requests facilities that will enable him to do the job as he sees fit and in a way that parallels how Ms Justice Laffoy previously requested facilities and resources to allow her do the job, the Government will not deny those resources and prevent this sorry and sensitive saga being dealt with conclusively.

I accept the good faith of the Taoiseach that the State owed all these abused people a deep, heartfelt and genuine apology. I accept that he was genuine in establishing a commission of inquiry and giving it a mandate to conduct a full and thorough review of what happened. However, I fail to understand why, having made these two commitments, the Government failed to provide sufficient resources, facilities and assistance to a brilliant and technically forensic chairperson who had the ability, credentials and integrity to see that the commission would complete its work efficiently and speedily and, as she said herself, in the interests of justice and fairness, to allow those who were abused or accused, sometimes wrongly, to have their say.

Those of us who spend most of our time in and around this House, whether they be Members, staff or journalists, inevitably acquire a cynical frame of mind. We profess never to be surprised; we have seen it all before. At the most, when a disastrous state of affairs unfolds, we might concede something vague and non-committal such as: "I don't know whether to laugh or to cry."

As we review the situation in which we, the Minister, Ms Justice Laffoy, her commission, its staff and the thousands of applicants to that body now find ourselves, there is no more appropriate phrase. We simply do not know whether to laugh or to cry. I say that because I suspect that the Government is laughing up its sleeve, but there are hundreds, more likely thousands, of damaged and vulnerable citizens who have been given reason to cry by the events of recent weeks.

Yesterday's instalment was the report from the Comptroller and Auditor General dealing with the residential institutions redress scheme, which confirms that the Government has grossly mis handled this issue. It is clear from the Comptroller and Auditor General's report that total liability arising from the scheme could exceed €1 billion, the State failed to keep accurate accounts of the rapidly increasing number of claimants during negotiations and the Office of the Attorney General was excluded from negotiations with the religious congregations during critical periods.

In addition, the Department of Education and Science appears to have conducted the negotiations with the congregations without seeking to ascertain their level of ability to pay. The Attorney General only sought outside legal opinion on the issue a matter of days before it was agreed by the outgoing Government and, at the last minute, the Government was warned that the €128 million agreed as the congregations' contribution was unlikely to be sufficient. At the 12th hour, the Attorney General told the Government before it agreed the deal that it contained no mechanism for increasing the contribution from the congregations if the number of cases increased greatly.

The Comptroller and Auditor General's report is the final proof, if it were needed, that the previous Government behaved in a reckless and profligate manner on the issue of the redress deal. The public has a right to know what motivated this rushed and irresponsible arrangement. The former Attorney General confirmed to journalists today that his office was excluded from the negotiations and that he had expressed his unhappiness to the former Minister, Deputy Woods. It is a tragedy that he thought to do no more than that. The Minister for Justice, Equality and Law Reform, Deputy McDowell, also confirmed that this deal was done on the basis of entirely inadequate documentation. That will no doubt explain the Taoiseach's anxiety earlier this morning to kill Deputy McDowell with kindness. As the unfortunate Lord Mayor of Dublin discovered recently, hell hath no fury like a Progressive Democrat scorned.

I do not know whether the Minister, Deputy McDowell, wishes to contribute to this debate. He accused me this morning of taking a cheap shot at him, a phenomenon with which he would be entirely unfamiliar. I stated, as does the report of the Comptroller and Auditor General, that he had been excluded. He did not even receive a reply for ten weeks and was, it appears, excluded through no fault of his at that stage.

The reason he was excluded from that point until the deal was approved on 5 June is more difficult to establish. According to the Comptroller and Auditor General he returned in late May when he brought in an outside senior counsel. In June, as the Comptroller and Auditor General delicately puts it, he advised against the deal, which was, however, approved on 5 June. This means he must have offered his advice between 1 and 5 June, dates which probably included a Sun day. I presume, therefore, that he advised on the matter just as it went to Cabinet.

I would like the Minister for Justice, Equality and Law Reform to explain the reason he described my remarks as a cheap shot. It appears he was satisfied to make his protests in the mildest possible fashion. Either he acquiesced in the decision because he was about to be appointed Minister or was helpless to change it. I accept the latter explanation was probably the case and that the then Minister for Education and Science, the Taoiseach and the Government had decided to proceed with the deal regardless.

To be fair to the Minister for Justice, Equality and Law Reform, I will put on record what he said this morning. He stated he was not satisfied that the version of the former Minister, Deputy Woods, was correct, that the Attorney General's office was excluded and that the former Minister, Deputy Woods, "unilaterally decided" to take over the negotiations. He then stated he objected after the Cabinet meeting and sought a meeting with the Taoiseach and the then Minister, Deputy Woods. He said he brought to the then Minister's attention his unhappiness with the fact that apparently important decisions were being made without adequate legal input. He concluded by stating that when he wrote to the then Minister seeking details of the deal he received no reply because "no such documentation was apparently in existence at the time". These remarks speak for themselves. If the position of the Minister for Justice, Equality and Law Reform is that all blame rests with the former Minister for Education and Science, Deputy Woods, and the Taoiseach, let him come to the House and say so.

There are a number of questions we must address with regard to the Laffoy commission. I was flummoxed by the Minister stating in the House again that he and the Government were surprised by Ms Justice Laffoy's resignation. In light of the 15 documents released with her letter of resignation, it is beyond belief that he could possibly make such a statement.

Why did the Government effectively decide to dismantle the Laffoy commission? How did an obsession with legal costs and with the imperative to be seen to do something about them overwhelm all other considerations? Why was the indemnity deal with the congregations, the State's sole source of income for this exercise, so surreptitiously and badly mishandled?

I welcome the appointment of Mr. Seán Ryan SC and wish him well. He has the competence and integrity to clear up the mess of the Government's making. I advise him, however, to consult Ms Justice Laffoy about the commitment made by the Minister that it is his intention and that of his Department "to continue to give every assistance to the commission". If they continue to do this in the manner they did with Ms Justice Laffoy, Mr. Ryan will have a difficult task.

On 4, 5, 11 and 12 February, I used Leaders' Questions to raise with the Taoiseach some of the questions that surround the extraordinarily negli gent deal concluded by the former Minister for Education and Science, Deputy Woods, and the religious congregations on the final day of the previous Government and approved by the Cabinet. This deal will now come back to haunt the taxpayer, since the changes announced by the Minister for Education and Science, Deputy Noel Dempsey, following the collapse of the Laffoy commission will drive more abuse victims to the High Court where, under the terms of the Woods deal, the Exchequer will be liable for all costs, including the costs of the religious orders and the alleged abusers. I understand from the report of the Comptroller and Auditor General that the number of people in a position to re-open High Court actions exceeds 2,400.

In another remarkable comment, the Minister stated the "indemnity covers only those cases which could go to the redress board and is not open-ended as some people have suggested". This was the entire basis of the dispute with the former Attorney General McDowell who wrote—

The Deputy should use the term "Minister".

He was the Attorney General. I did not mean any disrespect. As noted on page 86 of the report of the Comptroller and Auditor General, the then Attorney General wrote to the then Minister pointing out that they thought the indemnity would extend only to cases which would go before the Residential Institutions Redress Board. The Minister wrote back pointing out that the indemnity would apply to everyone. The sentence in which the current Minister seeks to give the impression that indemnity applies only to cases which "could" go – not "would" go – to the redress board is a sleight of hand. Under the Woods deal we will end up paying the costs incurred by anybody who decides right up to the last minute to go straight to the High Court.

The information I extracted in the Dáil is confirmed in the Comptroller and Auditor General's report. The deed of indemnity was drafted by Arthur Cox Solicitors for the religious congregations, not in the Attorney General's office; its terms were never debated in or approved by the Dáil; the former Minister, Deputy Woods, was unaccompanied at critical negotiating meetings; critical Government decisions were made on the basis of oral reports by former Minister, Deputy Woods; and the Department of Finance had recommended a 50-50 apportionment of liability. Instead, all costs in excess of €128 million, regardless of their nature and contemplated or not, will be borne by the Exchequer.

As regards the property aspects of the deal with the congregations, on 12 February 2002 the then Minister for Education and Science, Deputy Woods, gave a briefing in public session to the Joint Committee on Education and Science. This was after the agreement in principle for an indemnity but before its formal signing. The then Minister informed the committee that:

On the new package, I have been asked about the property particularly. There is approximately 12% of the property which would be completed in the period since May 1999.

He was asked by Deputy Shortall what the word "completed" meant, to which he replied: "A transfer was completed." She pressed him, asking whether he was referring to the legal transfer. This he confirmed, stating: "Yes, the legal transfer was completed." The Chairman, Deputy Michael Kitt, then intervened and asked whether 12% of the property had been transferred since May 1999. In response, the Minister again confirmed his claim, stating: "That is correct, that is all."

This being Deputy Woods, nothing could be that simple. A few moments later he stated: "It is an agreement in principle which has been completed." He then listed the properties he said had been the subject of transfer agreements "in principle". We now know that, to date, the State has not accepted any one of the properties listed as previously transferred under this deal.

In his evidence to the committee, Deputy Woods was engaging in misleading flimflam. In the past 24 hours he has been embarked on an orgy of flimflam which must leave the Minister for Education and Science blushing because it embarrasses me. The Government should rein in Deputy Woods.

During his meeting with the Joint Committee on Education and Science on 17 February last year, Deputy Woods stated:

One should not be trying to make problems where there are none. One should not be trying to imagine that everybody is out to fool everybody else in this.

This is unbelievable. One thing is clear, the Deputy took his colleagues in the joint committee for fools and spun them a line which was yesterday confirmed as unreal and unsustainable.

I go a certain distance with the Minister in one vital respect. He is strong in his acknowledgement of the degree of State responsibility for the collapse of discipline and good order in the residential institutions. However, according to him, the State is principally responsible. He said:

In terms of responsibility, I see it principally as that of the State because it incarcerated young people, often for flimsy reasons, such as an unfit mother, being born out of wedlock . . . Other reasons for incarceration included absence from school or the theft of an apple from a shop in Letterfrack. Many of those incarcerated were orphans. I am telling the Deputy what the State did and why I believe it has a major responsibility in this area.

The duty of care and supervision lay with the State. It subcontracted this duty and sought people to care for those citizens on its behalf. It inspected the care, which is recorded. There are reports and records of serious physical and sexual abuse to which the State did not respond. These reports were often hidden or buried. Correspondence was received at the very highest levels in the Department of Education and Science stressing that serious abuse was occurring. This was denied in writing on advice from officials.

There were letters from Daingean reformatory begging for extra funding and stating that children were starving and dressed in rags. The letter in reply stated: "Make do with what you have." Institutions in England received ten times the per capita allowance and were still grossly underfunded. All this evidence and more of which I could give examples is with the Laffoy Commission . . . ”

It was a shameful era, as Deputy Kenny said, and we all share in the guilt. Since the Minister puts his Department so centrally within the framework of responsibility, is it surprising now to see the Department acting on grounds of collective self-defence to stymie the Laffoy Commission and frustrate its inquiries. We have a giveaway deal with the religious congregations – the "subcontractors" to quote Deputy Woods – on the one hand and a collapse of the work of inquiry and investigation on the other, to ensure no blame or responsibility is allocated to institutions or individuals in either the State or religious sector.

The Taoiseach, meanwhile, is all over the place. On 8 September last he said:

I accept Justice Laffoy's criticisms. She has worked on this.

It was left to the Minister, Deputy Noel Dempsey, to set out the official line on the following day's "Six One News" when he stated: "We have fully responded to her perception of what has happened over the years." With regard to her allegation that the Government had undermined the work of the commission he said: "That's not a view that the Government agrees with."

The next day, speaking in Sligo, the Taoiseach accepted:

There were delays in the fixing of legal fees and delays because we said we wanted to do a second review. I accept those points.

Apparently, however, it was not done on purpose. He said: "What I and the Government do not accept [was] that there was any deliberate attempt . . . . to frustrate the good work of Justice Laffoy or the operation of her commission." The so-called rebuttal document of 9 September gives at least four clear examples of non-acceptance of the judge's criticisms. This followed the Taoiseach's statement that he accepted the criticisms. The document states:

It cannot be accepted that a period of eleven months from a proposal from the Commission that a decision "in principle" be taken as regards a compensation scheme to the publi cation of detailed legislation on the matter was unreasonable.

Neither is it accepted that this period caused delay for the Commission.

It is not accepted that adequate resources were not provided to the Commission to enable it to carry out its remit.

The Government do not agree with this view [that the commission had been rendered powerless by Government actions and inactions].

The Government's attempt at rebuttal amounts, in effect, to an attack on the commission and its chairperson. The rebuttal document implies that another reason for the one week turnaround is that "a challenge to the constitutionality of the Act had recently been commenced by the Christian Brothers." However, this case had commenced on 13 February. The implication in the rebuttal is that the Minister, Deputy Noel Dempsey, only realised between 8 and 15 April that this court case would have ramifications for the heads of the Bill.

As to how he inherited such a problem in the first place, the current Minister seems content to place the blame on the parliamentary draftsman. He told "Prime Time" on 4 September:

When the original discussion took place about this [whether to investigate all claims or just a sample], it was conceived that we would have an inquiry akin to the one which took place in Queensland, which didn't go into individual cases. Now somewhere between that intent and the drafting of the legislation, the legislation clearly stated that individual cases would have to be done, and that is one of the problems that we're faced with. 1,700 cases to be dealt with will take us eight to eleven years.

This is unbelievable. He said the intent was one thing but somehow a Bill came before the House, sponsored by the former Minister, Deputy Woods, which did the opposite. The Government has now come forward with a plan which will take until 2007 to conclude, whereas it rejected without explanation a proposal to wrap matters up by 2005 because it "wanted to complete it in a shorter time-frame". Despite the publication of its rebuttal of Justice Laffoy's criticisms, the Government cannot act as if these valid criticisms can be ignored. There is no getting away from the fact that the Government engaged in obfuscation and obstruction of the commission to such an extent that it brought about the resignation of its chairperson.

The Government has come forward with a package of proposals which, even if implemented and completed in a timely fashion, will take at least twice as long to complete as the proposals advocated by the chairperson many months ago. It has not explained why the proposals from Justice Laffoy have been either sidelined or rejected and a new set of proposals which may take four years or more to implement and complete are more valid and effective.

The Labour Party will hold the Government to account for the incredible mess it has made of the investigation of child abuse. We do not have confidence in the Government to deliver on the commitments outlined in its new proposals given its record of gross incompetence, misleading explanations and collective inability to provide the Laffoy commission with the resources and reassurances it required to carry out its mandate. We accuse the Government of a breach of faith with the victims of child abuse by failing to provide the Laffoy commission with the necessary resources to carry out the work assigned to it by the Oireachtas.

I wish to share time with Deputies Ó Caoláin, Finian McGrath and Twomey.

Acting Chairman

Is that agreed? Agreed.

We live in a shameful time, when self-preservation is more important than the truth, saving one's skin is more important than justice and monetary considerations overwhelm pleas for full and frank disclosure. The background to the indemnity deal, the establishment of the Laffoy commission, its resourcing and the redress board is a cesspit of intrigue, mystery and shady deals involving weak and cowardly politicians capitulating to religious organisations who would do anything to keep the floodgates closed and will fight tooth and nail to deny and obscure personal accounts of vicious physical and sexual assault, rape, buggery, psychological and emotional damage, mental torture, experimentation and other unspeakable evils.

It is a shocking story that will one day be analysed by historians and political commentators who will judge the behaviour of the Government and the modern church in dealing with survivors of abuse from the 1930s to the present day in the same critical terms as those who perpetrated the abuse and the politicians, departmental officials, members of the Garda Síochána, the Judiciary and others who facilitated the abuse or who were grossly negligent in their handling of the many cries for help that came their way and who incarcerated the survivors in those hellholes in the first place. Many of the survivors do not even know their real names. History will judge the Government and the religious unkindly when the truth finally emerges. As a politician, I, and others, have a duty to ensure it emerges quickly, screaming with the cries of the abused. Justice must be done and must be done transparently.

First, let us get to the bottom of the indemnity deal. It is a deal finalised by a former Minister who had no notes or memos to give to Cabinet on the matter before the last election. That deal gave the religious a bargain way out, but now, according to the Comptroller and Auditor General's report, it will cost the State at least €1 billion. If the church still sold indulgences, this Government would be guaranteed a red carpet to heaven for its noble sacrifice on behalf of the abusers. The Taoiseach and the Minister were right yesterday and today when they said that the State would be liable for a large share of the costs in court actions taken by survivors, but why was the shoddy, shameful €128 million deal arranged in the first place?

My colleagues, Deputies Dan Boyle and Trevor Sargent, will be speaking about the matter later and in committee tomorrow, so I will not go into too much here. However, the Government made a grave and fundamental error in signing the deal, since it transpires that a large proportion of the property cannot be sold commercially to raise funds to compensate victims. It also made another grave and fundamental error in its estimate of the true cost of compensating the abused.

Until proven wrong, I will firmly believe that the Government originally agreed the €128 million because it was running scared of the court route. It knew that the church would, in many cases, successfully tie the Department of Education and Science and other Departments in as co-defendants, creating a potential for compensation far higher than €128 million. I am not sure whether the costs of the court action would be higher in this case after the report relative to the redress and Laffoy costs. However, I have no doubt that the Government's motivation was primarily driven by cost. In doing that deal, the Government let the church off the hook in an effort to cut costs. Now it transpires that they are huge.

I do not believe that cost is the issue now. Getting to the truth and justice are the issues, and the Government must show that. If cost was unimportant, how come the survivors who received a settlement through the Residential Institutions Redress Board cannot go to the courts and face prosecution if they reveal the details of their award? Let us examine the Residential Institutions Redress Board. Admittedly, the Committee on Education and Science had no problem with the weighting initially proposed, but it is clear that the redress board is not working well. The weightings are inadequate and come nowhere near matching the compensation payments of the High Court, as recommended by Seán Ryan in the O'Gorman case, for example. I would be grateful if the Minister could clarify whether the highest payment to date was just over €200,000 for a person who was experimented on. He certainly did not do it in committee. If that is so, what do other victims have to look forward to in purely financial compensation for their suffering? The redress scheme must be reviewed and revamped.

I now come to the Laffoy commission. The reason this debate is taking place is that Ms Justice Mary Laffoy resigned. The confidential committee has worked out to some extent, and after a year of asking the Minister has finally accepted that those who have received counselling and simply wish to tell their stories will now have the option of moving from the investigations committee to the confidential committee. For those who still wish actively to seek justice, the investigations committee remains a farce. I concede that it was hounded by the religious, but also by the Government, which Ms Justice Laffoy pointed out had not assisted her in doing her job. She said that she would be able to complete it by July 2005. Her letter was a critical indictment of the Government's obstruction and incompetence in dealing with bringing the truth of what happened to light.

Along with other representatives, I questioned the Minister at last Monday's committee meeting. His responses regarding Ms Justice Laffoy's criticisms were not convincing, and we let the media and others decide on it. In moving past the resignation of Ms Justice Laffoy, the Minister must now show transparency and openness. So far he has done the opposite, showing great contempt for this House in announcing the appointment of Mr. Seán Ryan SC as Ms Justice Laffoy's replacement. His appointment, notwithstanding his credentials, is premature. Any new appointment or independent investigation that he is to carry out should have awaited the interim Laffoy report in November, this Dáil debate and the Minister coming before the Committee on Education and Science.

Did you ask the victims?

Acting Chairman

Allow the Deputy to speak.

We are talking about getting to the truth for the victims, and the Minister is obstructing that. If he wishes to help the victims, he must do two things.

Acting Chairman

Six minutes have now elapsed in the Deputy's slot.

He must publish all the documents on the changes that Ms Justice Laffoy proposes in advance and in full public view. He should banish sampling from the agenda. He has stated in meetings with groups representing victims that sampling would not be examined for the time being, but he has not ruled it out. Sampling should never be introduced. Each survivor's experience is as valuable as that of the next, and it is not enough to gather clear sample evidence in this instance.

If this mess is not cleared up in a forthright, honest and transparent manner, perhaps other options must be considered, such as the establishment of a forum where survivors can state their experiences under privilege without fear of legal interruption or a return to the courts, with the State openly admitting its liability and working with the victims to countersue the church. One way or another, things cannot go on as they are if we all claim to have the survivors' best interests at heart.

The resignation of Ms Justice Laffoy from the Commission to Inquire into Child Abuse must rank as the most serious breakdown of any inquiry ever established by this Oireachtas. I say that because, like the issue of contaminated blood products, and unlike some other tribunals, the Commission to Inquire into Child Abuse deals with matters of life and death, the health and well-being of thousands of citizens and a system of deplorable abuse amounting to a catalogue of crimes carried out over decades. That system of abuse claimed the lives of many children. We may never know exactly how many children died of neglect and ill treatment in those institutions. Our first and last concern should be the survivors of abuse and the memory of those who did not survive. Many survivors are so marginalised and damaged from their abuse that they will never be able to avail of the commission or the redress board. We know that many of them ended up homeless on the streets of London and other foreign cities.

Our focus now should be to see that the debacle which has been created is sorted out, that the lessons are learnt, and that we move forward. In her resignation letter to the Government, Ms Justice Laffoy revealed that the commission had "never been properly enabled by the Government to fulfil satisfactorily the functions conferred on it by the Oireachtas". If that charge is true, and I have no reason to doubt it, it means the Government has thwarted the purpose of the Oireachtas in setting up the inquiry. Adequate resources were not provided. The review process initiated by the Minister for Education and Science has caused delay and confusion, and we now have a chaotic situation, with the work of the commission effectively shut down. Ms Justice Laffoy resigned because, she said, the reviews made her position untenable, as it was unclear if the commission's remit would change. Its work had been stalled by the uncertainty created by the reviews. There is no new legislation yet, and it might take until next spring for it to be sorted out, as the Christian Brothers have taken a court challenge against the commission which will go to the Supreme Court next spring. The Government is using that as an excuse for delay. In the meantime, the commission is in limbo. In other words, a complete mess has been created.

The confusion since the resignation of Ms Justice Laffoy has been added to by the floating of ideas by the Minister for Education and Science, such as the hearing of sample cases by the investigation committee, the subsequent withdrawal of that idea and the floating of the proposal to summon alleged abusers to the confidential committee. Most survivors have expressed opposition to those proposals. As I said when I spoke at the survivors' meeting at Liberty Hall last March, this is not a matter of euro and cent but of justice and rights.

At that time, I also described the deal done by the Minister, Deputy Woods, with the religious orders as disgraceful. Everything we have learnt since reinforces that description. In his opening statement this afternoon, the Minister, Deputy Noel Dempsey, stated that those who were critical of the Michael Woods deal offered no alternative. We did not have to. The Government itself had the alternative. The Department of Finance recommended a 50:50 approach to liability between the church and the State, yet that recommendation was ignored and the Minister, Deputy Woods, went ahead and concluded one of the most extraordinary agreements ever entered into by any Government.

At the meeting of the Committee on Education and Science on Monday, the Minister attempted to separate the issue of the resignation of Ms Justice Laffoy and the now totally discredited indemnity deal. However, in justification of the Minister's conduct in this debacle, the Taoiseach and he have cited the cost of the process, something added to hugely by their decision to allow the religious orders off with only a fraction of the liability which they should bear. My colleague, Councillor Larry O'Toole, attended the survivors' meeting in Dublin last Sunday. It was a pity that neither the Minister nor his party was represented at it to hear both the real concerns and the deep anger among survivors. Survivors have challenged the role of the Department of Education and Science, and they want to see real progress and real justice done. That is also our demand as legislators.

When discussing this urgent issue, we should all reflect carefully and be sensitive to the needs of the victims. We must send out a strong message that we will do all in our power as legislators to support them. We must also be able to take tough decisions and put our money where our mouths are. Whingeing about the financial costs should never be an option. The church and the State have to take responsibility and society as a whole has to face up to all its responsibilities. Whether it is €500 million or €1 billion we have to pay up. There can be no debate about the costs. The victims and their needs have to come first.

Those of us who have worked on child abuse cases or who have close friends that were sexually abused know full well the hurt, the horror and the damage done to innocent victims. The church and the State have to face up to that reality. The victims have a right to have their voices heard and this has to be done efficiently and sensitively.

On 19 May 1999 the Taoiseach gave an apology to the survivors of institutions and reformatory school systems on behalf of the Government and the Irish people. He promised justice and redress. Most of these people are still waiting. That is not acceptable and it is not good enough. People are tired and hurt from all the waiting.

When dealing with this issue we cannot run away from the role of the wider society. As a young primary school student, I remember young lads from the home up the road from the school being marched down to the school each day in the same clothes. As young boys we knew who they were and that they were treated differently. They were discriminated against from the day they were born. This was the Ireland of the time where children in care and children of single parents were frowned upon by the wider community. We cannot run away from this fact. Even today, there are some in the wider society who want to go back to those terrible days. Let us listen for the cold words and the negative comments about single parents and mothers and the criticism when financial or housing assistance is given to these families. They whinge about the cost to taxpayers. They should always be challenged. I put down a marker in the sand that we are not going back to those dark old days. We need to look after our citizens and move towards the goal of a just society. They should have the support of all the TDs in this House, regardless of political allegiance.

I remind the House of the hidden story in this debate – the abuse of children with intellectual disabilities who have suffered, not always at the hands of the clergy. Many were abused and most of them do not realise this nightmare. They also must be represented in this debate and I intend to be their voice. Children with disabilities, particularly girls, were abused and they never got a mention. The sad part is that some of them do not realise the situation because of their intellectual disability. Let us not forget the many survivors who are so hurt and depressed they are not coming forward to this commission. Their story should never be forgotten.

When speaking about child abuse in the past, we should also remember the 90,000 children who live in poverty today. Among those 90,000, there is a group of 3,000 children who live in violent and dysfunctional families, for whom abuse is a seven-day-week experience. Most have lost their self-esteem and will end up abusing drugs or alcohol or in prison. These children have to be helped and if action is not taken here today we are turning our back on another generation. The present deal is a bad one. It is bad for the victims and the taxpayers.

I urge the Government to act soon to ensure all these people are treated in a caring and compassionate way.

Debate adjourned.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.
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