Dáil Éireann díospóireacht -
Wednesday, 27 May 2015

Vol. 880 No. 1

Topical Issue Debate

Property Tax Exemptions

Deputy Brendan Ryan

I thank the Minister for taking this Topical Issue today regarding the exemption from local property tax for those people afflicted by pyrite in their homes. It is Government policy, as announced by the Minister for Finance, that home owners who have pyrite-affected homes should be exempt from local property tax. The regulations regarding the exemption from the local property tax are set out in the Finance (Local Property Tax) (Pyrite Exemption) Regulations 2013, SI No. 147 of 2013. This statutory instrument is used by Revenue to either provide the exemption or not and Revenue is following it to the letter, as is required by law.

Revenue is currently issuing letters to home owners all over Fingal and the rest of Leinster stating that if the home owners do not provide a certificate detailing core testing of the sub-floor hardcore material and showing the qualifying significant pyrite percentages that the home owner will not be able to obtain the exemption. Revenue has provided a timeframe of 28 days to comply. As the Minister is aware, the cost for core testing of the sub-floor is in the region of €2,500 to €3,000.

The Pyrite Resolution Board does not require a core test for acceptance into the national remediation scheme. It does not require core testing of the sub-floor hardcore material to verify significant pyritic damage. In the majority of cases a building condition assessment to level 2, in accordance with Irish Standard 398-1:2013 has sufficed. The strict measurement as required by SI 147 of 2013 to demonstrate significant pyritic damage is not required by the PRB to validate applications for the scheme but is required by the Revenue for exemption purposes. To have to spend €3,000 to gain an exemption for a far lower amount is nonsensical. This problem must be resolved. SI 147 needs to be changed to reflect what is happening in practice.

Having examined the text in the statutory instrument it appears a simple edit by the Minister for the Environment, Community and Local Government could resolve the problem quickly. Page 3 of the document I have handed to the Minister begins:

“significant pyritic damage” in respect of a residential property, means a property which—

(a) has a Damage Condition Rating of 2 or a Damage Condition Rating of 1 (with progression) established on foot of a Building Condition Assessment carried out by a competent person under and in accordance with I.S. 398-1:2013, and

(b) has sub-floor hardcore material classified, by the appropriate competent persons, as susceptible to significant or limited expansion, established on foot of testing the sub-floor hardcore material.

Replacing the word "and" at the end of part (a) with "or" would effectively apply the same criteria for "significant pyritic damage" as is applied by the Pyrite Resolution Board for inclusion in the pyrite remediation scheme.

Many houses affected by pyrite are in estates where HomeBond previously did core sampling for certification of pyrite levels. HomeBond stated that it would be cost-prohibitive and wasteful in the extreme to core test each property. Many homes have a building condition assessment in accordance with I.S. 398, detailing a damage condition rating of 2, and have been accepted by the PRB for inclusion in the pyrite remediation scheme. They are in the current schedule of works and a contractor is currently on site. They have not been required to carry out a core test, but because they do not have a core test Revenue is refusing exemption. Any home that is accepted by the PRB into the scheme for remediation obviously has pyrite and should, as a matter of course, be exempt from local property tax. The problem is the wording of the statutory instrument. It needs to be changed urgently. The simple solution I have presented today will do this. It can be done almost overnight because it is secondary legislation. I look forward to a positive response.

Minister for Finance (Deputy Michael Noonan)

The pyrite panel appointed by the Minister for the Environment, Community and Local Government recommended that consideration be given to providing an exemption from local property tax where damage from pyritic heave had been proven by testing. This was to be proven in accordance with a National Standards Authority of Ireland standard capable of determining if there was reactive pyrite in the sub-floor hardcore materials and if it had been subject to pyritic heave.

Irish Standard 398, titled "Reactive pyrite in sub-floor hardcore material - Part 1: Testing and categorisation protocol" was published on 29 January 2013 by the NSAI in response to the panel's recommendation. Accordingly, section 10A of the Finance (Local Property Tax) Act 2012, as amended, provides that an exemption from the charge to local property tax will apply for a temporary period of at least three consecutive years for residential properties that have been certified under the Finance (Local Property Tax) (Pyrite Exemption) Regulations 2013, SI 147 of 2013, made by the Minister for the Environment, Community and Local Government, as having significant pyritic damage.

The regulations set out the methodology for the assessment of dwellings to establish significant pyritic damage. These regulations require that home owners demonstrate significant pyritic damage in accordance with the NSAI standard I.S. 398. To be eligible for an exemption from local property tax a liable person must have a damage condition rating of 2 or a damage condition rating of 1 with progression, established on foot of a building condition assessment, BCA, carried out by a competent person in accordance with the NSAI standard, and have a sub-floor hardcore material classified by the appropriate competent person or persons as susceptible to significant or limited expansion, established on foot of testing the sub-floor hardcore material.

The purpose of the building condition assessment is to demonstrate damage and to inform whether sampling and testing of the sub-floor hardcore of the residential property should be undertaken to confirm that such damage arises from pyrite. The building condition assessment does not involve any invasive internal or external inspections to a residential property and, on its own, cannot be used to state conclusively that reactive pyrite is present in the sub-floor hardcore of the property.

Grievances about the operation of the LPT exemption centre on the cost that must be incurred by a property owner in verifying that his or her property has been damaged by pyrite.

I made a commitment to examine the local property tax and any impacts on LPT liabilities as a result of property price movements. In this regard, Dr. Don Thornhill is conducting a review to consider and make recommendations in the context of property price developments on what adjustments, if any, might be made to the system to achieve relative stability of LPT payments by liable persons. Dr. Thornhill chaired the interdepartmental group on the design of a local property tax in 2012. The review will address a number of other issues concerning the LPT, including the relief from LPT for owners of pyrite-damaged homes and how the anomalous issue that has arisen in this regard can be resolved satisfactorily. I expect the review by Dr. Thornhill will be completed by summer 2015.

Resolution of the pyrite LPT relief issue may necessitate a change in the relevant provisions of the Finance (Local Property Tax) Act 2012, as amended, or the Finance (Local Property Tax) (Pyrite Exemption) Regulations. If it is the case that legislative change is required I will examine with the Revenue Commissioners the possibilities for applying any change on an administrative basis in advance of such legislative changes. I am mindful that the issue the Deputy has raised needs to be addressed and I am keen to reassure him and the home owners affected that the situation is receiving attention.

Deputy Brendan Ryan

I thank the Minister for his reply. I have nothing seriously to add to what I have said, but I will summarise the position. Will the Minister accept that a solution to this could be along the lines of the way I have advised, in which case the change to the statutory instrument would have the effect of delivering what people are entitled to?

The exemption for pyrite-affected homes is Government policy. This exemption is being denied by Revenue because of the wording of the statutory instrument and this is an issue for the Department of the Environment, Community and Local Government. The Minister could deal with the anomaly in the way I have suggested. I have provided one solution. The drafting and legislation people could come up with something different.

People are on 28 days' notice to come back in terms of verifying that they have undertaken core test and have the results, at a cost of €3,000. Certainly I would be happy to work with officials from the Department of the Environment, Community and Local Government to explain the problem and how it could be addressed.

Applicants who have spoken to officials from the Revenue Commissioners have indicated the officials are sympathetic to the situation. They know people are getting their houses remediated because they have pyrite yet they cannot get an exemption on pyrite grounds because of this statutory instrument. The Minister suggested in his response that there could be ways of doing it involving the Department of Finance.

However, I am advising a simple solution involving the Department of the Environment, Community and Local Government that could deal with the issue in a clever enough way.

Deputy Michael Noonan

I thank Deputy Ryan for raising this issue. First, I accept there is an anomaly and that it is along the lines pointed out by him. Second, I am waiting for Dr. Thornhill to advise me on how to remediate this anomaly. He may suggest an amendment to the Local Property Tax Act 2012 or he may consider, in line with the Deputy's proposal, that an amendment to the statutory instrument would be sufficient. I do not know whether the Deputy's proposal will resolve the problem but I will refer it to my officials and have it examined by Dr. Thornhill. As soon as I come to a decision, I will introduce whatever change is required administratively so people will not have to wait for the Finance Bill in the late autumn. The Revenue Commissioners will accept a commitment that we intend changing and apply the law as if it had been changed.

Services for People with Disabilities

Deputy Aengus Ó Snodaigh

Gabhaim buíochas leis an Aire as ucht bheith anseo chun an díospóireacht seo a thógáil. Earlier this year, on 17 February, the Minister for the Environment, Community and Local Government, Deputy Alan Kelly, responded to a Topical Issue matter I raised drawing attention to concerns I had over the rolling out of the social inclusion and community activation programme, SICAP. I referred to the substantial cut in funding for the programme. There was a cut of €2 million throughout the country, with a cut of €742,000 in Dublin alone. I stated my belief that the new regime and the cuts would result in a loss of services and jobs. I asked the Minister at the time to guarantee there would be no job losses or a loss of service in the most disadvantaged communities in the State. A commitment to reinstate the money was not forthcoming. I hope the Minister of State, Deputy Ann Phelan, has good news in this regard. In February, the Minister stated, "As the Minister with responsibility for this area, I will not prejudge a tendering process". In some ways, I accept that. He also stated, "I am confident that the Government will address any issue that arises in the area of service provision to ensure people will receive the services they need". He added that once the tendering process was completed, he would "review the outcome and ensure front-line services delivered through the new programme are protected in so far as possible". I am sure the Minister of State, in her response, will reiterate that.

I do not know how much the Minister of State knows about the D12 Disability Mainstream Access Project, DMAP which operates in the Dublin 12 area, an old area of the city characterised by severe disadvantage. She has probably visited it on many occasions. DMAP is a community development organisation seeking to increase awareness and understanding of the needs and experience of people with disabilities. It seeks to help to address the issues of physical and social barriers that preclude access to community facilities for people with a disability and increase the level of social participation of people with a disability. The Dublin 12 area is an area of severe disadvantage for those with or without a disability. In fact, one in five people identifies as living with a disability in the area. This proportion is higher than in other parts of the country.

In the past year alone, 90 people took part in DMAP activities in the area. A further 250 schoolchildren are engaged in a disability awareness initiative facilitated by DMAP members. DMAP has worked with service providers, such as the National Council for the Blind of Ireland, WALK, Enable Ireland, Cheeverstown House, Dublin City Council and the local gardaí. The organisation is regarded by many of the statutory agencies in the area and beyond as one of the models of best practice in supporting people with a disability in the community.

DMAP received funding to the tune of €30,000. This is not huge. This money was to run the services, and particularly to help engage a part-time co-ordinator, who helped those with disabilities run the activities for themselves. However, due to the SICAP proposals and the resulting cut affecting DMAP, the project was forced to lay off the part-time co-ordinator earlier this month. I hope the Minister of State will be able to announce a reversal of this.

Does the Minister of State accept that the whole SICAP process is now preventing Canal Communities Partnership, the partnership group that covers the Dublin 12 area or the part of the Dublin 12 area in question and which won the tender, from allocating funding to the project? It now falls to the Minister of State to step in and allocate money directly or allocate to the Canal Communities Partnership additional funding that it can transfer to DMAP. The initial promise that was made was that these issues would be addressed once the tendering process was completed and once things settle down.

Minister of State at the Department of the Environment, Community and Local Government (Deputy Ann Phelan)

I thank the Deputy for raising this important issue. It gives me an opportunity to explain the process. The proposals outlined in Putting People First — Action Programme for Effective Local Government seek to position local government "as the primary vehicle of governance and public service at local level — leading economic, social and community development, delivering efficient and good value services, and representing citizens and local communities effectively and accountably". As part of the programme of reform of local government, local community development committees, LCDCs, have been established in all local authority areas. These committees, comprising public-private socio-economic interests have responsibility for local and community development programmes on an area basis, including the social inclusion and community activation programme, commonly known as SICAP. They will develop, co-ordinate and implement a more coherent and integrated approach to local and community development than heretofore, with the aim of reducing duplication and overlap and optimising the use of available resources for the benefit of citizens and communities.

In accordance with the public spending code, legal advice, good practice internationally and in order to ensure the optimum delivery of services to clients, SICAP was subject to a public procurement process. Tenderers have now been informed of the outcome of their tenders, and LCDCs have finalised contracts with the winning tenderers.

Rathmines Pembroke Community Partnership provided funding to the project in question under my Department's local and community development programme. The programme concluded on 31 March 2015 and the new SICAP was rolled out across communities on 1 April 2015. Rathmines Pembroke Community Partnership was unsuccessful in its tender to deliver the SICAP in the canal-Rathmines-Pembroke lot area, and I am advised that, as a result, the company is no longer in a position to continue managing the project referred to.

As SICAP will be overseen and managed by the new LCDCs in each local authority area, the configuration of delivery bodies or delivery arrangements for the Dublin city area in respect of local and community programmes is a matter for the LCDC of Dublin City Council to consider in consultation with relevant stakeholders, commensurate with service needs. Dublin City Council and the relevant LCDC is liaising with the SICAP implementer for the area on service delivery issues arising in the Dublin city area. I am satisfied the programme implementer will ensure it supports relevant actions for this disability group within its SICAP plan and strategy.

Deputy Aengus Ó Snodaigh

I thank the Minister of State for the answer, but it is a hands-off answer implying the matter has nothing to do with the Government and that it is up to the LCDC. This is not the case given the consequences of not funding the LCDC properly and the fact that the fund is already allocated based on the tender.

The tender under which this group was operating was not successful. It does not fall under the canal communities partnership which only offers a forum for people with disabilities. It does not want a talking shop. It knows what the issues are and was quite successful. It is talking about a sum of €30,000 to ensure there is inclusion.

The idea behind SICAP, all of the programme partnerships and the original SDPs was to ensure social inclusion. This is a group of the most marginalised people in society, some of whom were in the Visitors Gallery earlier as they expected this debate to be held earlier. They are now meeting Deputies from different parties. The people in the group I am meeting are in wheelchairs and blind or have other disabilities. They will feel frustrated when they hear that the body implementing the programme will deal with this issue. In some ways, it is too late. The person concerned has been laid off, the service is suffering and they have to scale back severely in planning for the future because they do not have other sources of funding. I hope local politicians and businesses will give them some of the money they need, but funding was available. They are not seeking a huge pot of money. They want somebody to represent them and open doors to help them to gain access for themselves and others.

This was a cut to social programmes throughout the country. The cut in Dublin was €740,000 and it is now beginning to take effect. Job losses are occurring. It affects those delivering community services, be it in Ballymun or Whitehall where there have been substantial job losses. Senior citizens living in Donore have lost one of their workers through no fault of their own but through the fault of some of the partnerships which did not include them in the programme. Will the Minister of State give a commitment on behalf of the Minister that he will step in and allocate money until the next tender comes up for consideration and the group proves once again that it should have been included in the first tender process by both partnerships that bid for the money? It is the Minister who has the money to put in, not Dublin City Council.

Deputy Ann Phelan

The winning tenderer in the Canal-Rathmines-Pembroke area has signalled its intention to target people with disabilities within its SICAP action plan. It intends to promote the proactive inclusion of people with disabilities and their families in existing social and community groups and activities. It will also support the development of specific disability interest groups and build on existing disability networks such as Gateway, the Bluebell disability outreach project and the disability mainstream access project. Recognising the existence of a large number of voluntary organisations in the area referred to, an area-wide disability forum will be established involving the HSE, the Department of Social Protection, WALK, Menni Services and local community interests with the aim of promoting inclusion in community-based services and activities for people with disabilities and greater awareness of their needs. In line with HSE and Government policy, the action plan will focus on supporting the development of community-based services for people with disabilities in social outlets, recreational activities and sport. It will also seek to promote the inclusion of people with disabilities in work and make sure services are relevant to their needs.

It was anything but a hands-off approach. We have been liaising with the officials on how to alleviate the problem. The Deputy might be wise to speak to the LCDC also to see what accommodation can be provided within the structure for the disability group. I must also be mindful of the fact that SICAP involved a tendering process. It was a legal process. The legal position of which I must be mindful is that people won their tenders.

State Examinations

Deputy Sean Fleming

I raise an issue which affects approximately 1,000 students who are due to sit the leaving certificate examination in the coming week. They have special needs and applied through the Department to the State Examinations Commission for a reader to assist them in reading the examination papers in order that they will be able to answer the questions to the best of their ability. Many of them suffer from dyslexia and as a result have a difficulty in reading examination papers. However, they have been refused this special support. Members will understand what I am talking about. There is a system in place under the State Examinations Commission to provide readers for students sitting the junior and leaving certificate examinations. Last week I asked about a case in Portlaoise, to which I will return, in a parliamentary question. I then asked for the overall numbers involved, which I received in a letter from the State Examinations Commission last night.

The reasonable accommodation provision under the certificate examinations scheme has been designed to assist students with special needs. It applies to candidates with a physical disability, a visual or hearing impairment or a specific learning difficulty. The purpose of the scheme is to remove as far as possible the impact of the disability on the student in order that he or she can demonstrate his or her level of attainment. The provision is very clear. The reader does not help the student to answer the examination questions. He or she just reads them to the student who must reply in full himself or herself. The scheme has also been designed to ensure no candidate with a reader will be given an unfair advantage. We understand the scheme which is both good and fair.

Last year 914 students were refused a reader under the scheme. I can only conclude that the figure is of the same order this year, as there is no reason to think otherwise. I asked for the figures for each of the past three years to see what was going on. Last night the State Examinations Commission told me that in 2012, 669 students had been refused a reader. The figure increased to 894 in 2013, while last year it was 914. I am sure the figure this year is the same as last year at least. In a short period of time since 2012 the figure has risen from 669 to 914, an increase of 245 students or 37%. That did not happen by accident. It was a deliberate policy on the part of the Government to cut the funding available to cut down on the cost of examinations. The former Minister for Education and Skills, Deputy Ruairí Quinn, took the clear decision to cut the number of readers provided.

The students concerned have passed through the full primary and post-primary education systems. Because they have special needs, they have been assisted along the way. In their final examination they need a continuation of the help they have received, but the Government has slammed the door in their faces. They had the assistance of a reader in their junior certificate examinations. Does the Minister of State know how they feel having been deprived of the services of a reader at this stage? They have been reduced to tears and their parents are helpless. This is cruelty shown to students sitting the leaving certificate examinations. The Government has stepped up its approach in the past couple of years. The number of refusals was 600 when it entered into office and is now around 1,000. It is slamming the door and students are crying and afraid to sit their examinations because they are being deprived of a facility of which they were able to avail in their junior certificate examinations.

Minister of State at the Department of Education and Skills (Deputy Damien English)

I thank Deputy Fleming for raising this matter as it provides me with the opportunity to outline to the House the position with regard to the State Examinations Commission's scheme of Reasonable Accommodations at the Certificate Examinations, RACE. I am taking this debate on behalf of the Minister for Education and Skills, Deputy O'Sullivan, who is out of the country today.

The State Examinations Commission, SEC, was established as an independent agency in 2003 and has statutory responsibility for operational matters relating to the certificate examinations. Students with specific learning difficulties such as dyslexia as well as those with physical conditions are accommodated in the examinations under the SEC's RACE scheme. However, the existence of a specific learning difficulty does not automatically make a candidate eligible to avail of reasonable accommodations in the certificate examinations. Even though candidates may have a specific difficulty with reading, writing or spelling, they may not require the provision of any special accommodations provided that they can read the examination papers at the required level and write legibly.

The range of accommodations available to students includes the use of a special examination centre; provision of modified, brailled and enlarged papers for visually impaired students; access to readers, scribes, word-processors, tape or voice recorders for students with physical conditions, dyslexia or other types of specific learning difficulty; and exemptions from components of the examinations such as the oral or aural or the waiver from spelling and grammar in language subjects. Where candidates have reading difficulties, a reader may be provided. Some students may apply for and be granted more than one type of accommodation.

In the case of the leaving certificate, all applications for reasonable accommodations on grounds of specific learning difficulties are referred to the National Educational Psychological Service, NEPS, for consideration. This is not the case with the junior certificate. Decisions are made at a local level for junior certificate students. It is only at leaving certificate level that the NEPS becomes involved in the decision making process.

Eligibility thresholds apply to the various types of accommodations which can be made under the scheme and each case is considered on its own merits. Each application must include information supporting the candidate's request for a particular accommodation, including current school-based testing on ability and attainments in order to inform the psychologist's recommendation under the schemes' criteria. For example, applications for readers at leaving certificate level must show evidence of a specific learning difficulty and must be accompanied by supporting information which will allow NEPS to make an assessment of the applicant's degree of reading difficulty. The NEPS assessment of eligibility for the purposes of the RACE scheme is made on the basis of all of the information available and as required, in consultation with the school concerned.

Appeals against any aspect of the SEC's decision on RACE applications can be made to an appeals committee which is independent of the SEC. Neither I nor my Department have any role in reviewing decisions on RACE made by the SEC or the independent appeals committee. Candidates who continue to be dissatisfied with the outcome can appeal further to the Ombudsman or the Ombudsman for Children.

The Deputy quoted figures in his question and while I do not have those figures in front of me I do know that 1,700 candidates were provided with access to a reader last year. The Deputy has argued that there has been an increase in the number of refusals but I do not know if there was a corresponding increase in the number of applications. Perhaps the Deputy has data on that issue and if so, he should put that data on the record of the House too. I will seek the data to which the Deputy refers because an increase in the number of refusals could be linked to an increase in the number of applications in general. I do not know if the percentages have changed in that regard. All of that being said, it is an independent and rigorous process. The criteria are set out quite clearly and decisions are made in accordance with a framework of principles which was established by an expert advisory group. The process is entirely independent. I agree with the Deputy that negative decisions on RACE applications can cause great distress. Indeed, I have had constituents come to my office to express concern in that regard. However, we must make sure that this scheme is fair and equitable to all students who are sitting State examinations.

Deputy Sean Fleming

The letter I received states that the number of applications received in 2012 was 2,495, in 2013 it was 2,572 and in 2014 it was 2,609 while the number of reader approvals was 1826, 1,678 and 1,695, respectively. There has been a very slight increase in the number of applications, of approximately 100 over the three years, but the number of approvals has dropped and the number of refusals has increased. To put it simply, two years ago 25% of applications were being refused but last year that rose to 35%. There has been a significant increase in the number of refusals.

The Minister of State has really washed his hands with his reply. The Department in charge of education is saying that when a young person goes to sit the leaving certificate exam decisions on support for that student have nothing to do with the Minister or the Department but are the responsibility of an independent body. The Minister for Education and Skills is responsible for education and she should take an interest in this matter. It is not acceptable for the Minister to wash her hands of this situation.

I raise this issue on behalf of the parents of a young girl in Portlaoise who came to my constituency office because after going through the original assessment process and the entire appeals process, they were notified on 23 April 2015 that the appeals committee had decided that their daughter would not be granted a reader. That was only a few weeks before the beginning of the leaving certificate. The girl has been in school since she was four or five and is now 18 years old and about to sit her leaving certificate. She has had support all along but it is only at the point of her sitting her final exams that support is being withdrawn. That is barbaric, amoral and cruel and it is not acceptable that the Minister for Education and Skills would wash her hands of such a situation.

The final paragraph of the letter I received from the SEC on the specific case in question asserts that the SEC is satisfied "that all due consideration has been given in this case". In other words, that is the end of the road for the application. What is shocking is that the Minister of State has just said that candidates who are dissatisfied with the process can appeal further to the Ombudsman or the Ombudsman for Children. The girl only got word on her application a month before the leaving certificate is due to begin. Where is the Minister of State going with his reply? Does he think the Ombudsman or the Ombudsman for Children can deal with that case in less than a month and overturn that decision? That is a nonsense reply. It is a further nonsense that the SEC never informed any of those people who were refused support that they had the right to take their case to the Ombudsman or the Ombudsman for Children. It never informed me of same in its detailed, three page letter on the case I raised. Rather, the commission said that all procedures had been exhausted and it was satisfied with the decision. At the very least, the Department should tell the SEC to notify applicants of their right to appeal decisions to the Ombudsman or the Ombudsman for Children. The Minister of State and I both know that such an appeal is utterly impractical in the context of the four-week time scale in this particular case. The damage has already been done for those students who are sitting their leaving certificate this year but I ask the Minister of State to ensure that next year all of those who are entitled to this facility are granted it.

Deputy Damien English

It is not nonsense for me to come into the House and outline the process. I was just telling the truth as it is. The Deputy might not like it but that is the process. It would be wrong for any Minister to be able to interfere with a process that is meant to be independent. This is a State examination, a leaving certificate qualification and we cannot ever be accused of giving an unfair advantage to any candidate. The process must be independent. Some Deputies, including myself and Deputy Fleming, might wish sometimes that it was not independent and that we could have some influence over the process but that would be completely wrong. The process has to be independent, must be able to stand up to scrutiny and ensure that the correct decisions are made.

The Deputy's point about applicants not being informed of their right to appeal decisions to the Ombudsman or the Ombudsman for Children is valid. It is often assumed that people know of that right and perhaps it should be spelled out clearly to them. I will certainly ensure that is addressed. I also accept the Deputy's point regarding timelines. Indeed, some people are still awaiting a final decision. The timelines are a bit tight and we can certainly look at that before next year. I have no problem working on that but neither myself nor the Minister has any intention of changing an independent process so that we can have influence over it. That would be wrong and would not be fair.

The Deputy also spoke about the fact that the student in question had supports at junior certificate level. I wish to clarify that a more rigorous assessment process applies to the leaving certificate as it seeks to recognise the high stakes nature of this examination. It is the final State examination that is used, in most cases, to determine whether students can progress to further education, higher education or into a career. At junior certificate level the schools themselves make the decisions and are provided with guidelines by the SEC to help them to determine eligibility. In general the SEC provides the accommodations as determined by the school. Accommodations approved for a junior certificate student will not automatically be granted at leaving certificate and this is clearly outlined to schools, candidates and their parents in the RACE documentation. That said, I accept that very often people do not see the finer details in such documentation, which can cause difficulties.

I stress again that there is a different system in place for the leaving certificate and it is unfair of Deputy Fleming to try to muddy the waters. The arrangements for reaching decisions are different at leaving certificate level and the process must be independent. I cannot stress the latter point enough. I accept that it can cause great stress and difficulty but the scheme must be applied properly. The SEC cannot give an unfair advantage to one student over another. The idea of these supports is to ensure that students are in a position to reach their potential attainment levels and nothing impedes that but they cannot be given an unfair advantage. That requires a judgment call and I am sure everyone would have a different opinion on such judgments but that is what the experts are there for - to judge who is entitled to supports. I hope that in every case those who are entitled to support receive it.

All of that being said, it appears, based on the figures quoted by the Deputy, that the percentages have changed a lot so I will research that data further.

Miscarriages of Justice

Deputy Lucinda Creighton

I am disappointed the Minister has not shown up to the Chamber for this debate.

As the House will be aware, on 1 April the Department of Justice and Equality released on its website a press statement announcing the Minister’s intention to grant a posthumous pardon to Mr. Harry Gleeson, a man executed at the hands of the State on 23 April 1941 for the murder of Mrs. Mary McCarthy, a murder he did not commit. It has been seen by many as one of the greatest miscarriages of justice in the State.

In August 2013 this case was referred to the Office of the Attorney General and reviewed by Mr. Shane Murphy SC, who produced a report in January. For some inexplicable reason the Department of Justice and Equality has not released the report to the public.

It seems there has been an attempt by the Department to play down the significance of this case. Evidence, which has come to light since the execution of Mr. Gleeson, points to deliberate collusion by members of An Garda Síochána relating to his conviction. It is one of the key pieces of evidence which makes this conviction wrong and yet has received little or no attention in the press release the Department released on the pardon.

In particular, there was evidence of a fraudulent entry made in a firearms register. In 1983 a prosecution witness, Mr. Michael Leamy, revealed that on the afternoon the body was discovered and reported by Mr. Gleeson two plain clothes detectives came into the hardware store where Mr. Leamy worked and ordered a fraudulent entry be inserted in the firearms register for the purchase of a particular type of ammunition by Mr. Gleeson’s uncle. This entry has been located and is available to the public to view.

This evidence was submitted to the Department of Justice by Mr. Marcus Bourke, a former parliamentary draftsman, who wrote a book entitled Murder at Marlhill about the case in 1993. Why has it taken 22 years to issue this pardon? Why has it been issued now?

In the press statement of 1 April, the Minister made no reference to the work of Mr. Marcus Bourke. It did not highlight the statement by Mr. Leamy or mention that gardaí approached him on the day the body was found. The statement suggested merely that the firearms register, which was not produced during the trial despite several requests by the trial judge, "tended not to support the prosecution’s case." That is the only reference in it.

In a separate press release on 31 March, a day before the Harry Gleeson press release, the Minister for Justice and Equality announced that she was releasing the report of a similar case which had been reviewed by a senior counsel into the death of Fr. Niall Molloy. Why in this case was the report released but in Harry Gleeson’s case the report is somehow deemed to represent confidential legal advice to the Attorney General and the Minister? It is completely incongruous and it does not add up that one report can be deemed worthy of publication and another report not. Clearly the Department of Justice and Equality wishes to suppress the content of one report.

This case has bemused and concerned people for years. It goes far beyond a merely unsafe conviction, as the Minister has stated in her press release. It was a deliberate miscarriage of justice and should be seen as such by the Minister and her Department, and this should be made clear on the public record.

Mr. Murphy’s report should be released to the public, as it is in the interest of the public to see it. The Minister for Justice and Equality should certify that this was a miscarriage of justice and make a full and frank apology to the families and all people affected by this case, which has lingered on since 1941.

Minister of State at the Department of Justice and Equality (Deputy Dara Murphy)

I am speaking on behalf of the Minister for Justice and Equality who regrets she cannot be here because of other official commitments. I am a Minister of State at the Department of Justice and Equality, however. The Minister is grateful to the Deputy for raising this important matter.

As the Deputy is aware, the Minister announced that the Government had decided to advise the President to exercise his right of pardon under Article 13.6 of the Constitution in respect of the conviction in 1941 of Mr. Harry Gleeson for the murder of Mrs. Mary McCarthy. Concerns had been raised for many years over Mr. Gleeson's conviction.

Most recently, on foot of a submission from the Irish Innocence Project and the Justice for Harry Gleeson group, the Attorney General directed that the case be reviewed by Mr. Shane Murphy SC. Mr. Murphy concluded that, in his opinion, there were deficiencies in the conviction such as to render it unsafe. The Attorney General concurred with this assessment and advised that the deficiencies were such as to warrant the Government recommending to the President that he exercise his right of pardon. The arrangements for this recommendation to be put into effect are being finalised at present.

Mr. Murphy outlined a number of factors which led to him forming his opinion and these were set out in detail in the statement the Minister issued when she announced the Government decision on the pardon. The Minister is aware of suggestions that Mr. Murphy's advice should be published and the Deputy has repeated those suggestions today. However, the Minister has advised it is not proposed to do so as legal advice is provided to the Minister and the Attorney General.

In this regard the Minister wishes to emphasise that the examination carried out by Mr. Murphy was not intended to be an inquiry designed to establish all of the facts surrounding the conviction of Mr. Gleeson or indeed the murder of Mrs. McCarthy. The intention in carrying out the examination was focused on determining whether a case had been made for a pardon. To this end the statement the Minister issued following the Government decision sets out in detail the basis for the conclusion that Mr. Gleeson's conviction was unsafe. The Minister's statement was prepared with the assistance of Mr. Shane Murphy and it fully and publicly outlined the basis for the Government's decision.

There are no doubt unanswered questions concerning Mrs. McCarthy's murder and the circumstances surrounding Mr. Gleeson's conviction but seeking to come to a determination on these matters at this remove would unfortunately not be warranted or feasible.

In deciding to recommend Mr. Gleeson's pardon the Government is exercising the only available remedy to clear his name in the hope that it will also provide some suitable tribute to his memory.

The Minister emphasises that this is an exceptional course of action, being only the fourth pardon in the history of the State and the first granted posthumously.

The Minister again underlines that it is a matter of the very greatest regret that a man was convicted and executed in circumstances which are now considered to be unsafe. Equally the Government regrets that this leaves unresolved the murder of Mrs. McCarthy, which deprived her young family of their mother. The Government has expressed its sympathy with both families and all affected by this crime and the subsequent wrongful conviction.

Deputy Lucinda Creighton

I thank the Minister of State for coming to the House and providing remarks on behalf of the Minister for Justice and Equality. However, it is frustrating that I cannot get any satisfaction on the points I raised because the Minister is not here to speak. I assume she has intimate knowledge of this, which I do not expect the Minister of State, in fairness, to have.

There is one fundamental and reasonable question to which the families concerned and the public at large have a right to have an answer. Why was it deemed appropriate to publish the report into the Fr. Niall Molloy case but not appropriate to publish the report into the case of Mr. Harry Gleeson? They are very similar cases both of which I have followed closely. One report is deemed to be privileged legal advice between Mr. Murphy, and the Attorney General and the Minister for Justice and Equality, but the other is deemed not to be. That is incongruous and there is no explanation for it other than for one logically to conclude that it is desirable on the part of the Minister for Justice and Equality and the Department to suppress one report and to publish the other, which is of deep concern.

I would like an explanation from the Minister for Justice and Equality as to the reason for the differentiation between the two reports. To my mind, it is illogical. I do not expect that the Minister of State, Deputy Dara Murphy, will be able to answer my question. The Minister should be here to respond to that very important point.

I do not think it is true to say that the only possible solace that could be provided by the Minister for Justice or the Government is a pardon. I believe certification and acknowledgement that this was a miscarriage of justice would be appropriate, in addition to the pardon. The reality is that an innocent man lost his life at the hands of the State because of a miscarriage of justice and it should be acknowledged as such. I realise that this happened in 1941, which is a number of decades ago, but many people suffered, not least the individual at the heart of this matter, Mr. Harry Gleeson. The State should acknowledge that this was a miscarriage of justice. I believe that the public has a right to see the contents of Mr. Murphy's report. It may well be the case that an independent inquiry is required to fully establish the facts behind this case. It is difficult for Members of this House or, indeed, members of the public to make that adjudication. We are simply expected to take the word of the Minister or the Government rather than being able to judge for ourselves.

Deputy Dara Murphy

I will communicate to the Minister the Deputy's specific request for an explanation as to the reason these cases, if similar - I do not know that they are - have been treated differently. With regard to a full inquiry, the Minister has determined that the facts of the case would not warrant a full inquiry at this remove. Further correspondence has been recently received by the Minister and she has asked her officials to examine it and refer it to the Attorney General's office.

The Minister would like to point out that while the relatives in question have not been previously engaged with in regard to this case other relatives who form part of the Harry Gleeson group were in regular contact and they have welcomed the Government decision, as have many of those who campaigned on this case in recent years. The Minister hopes that all concerned can accept the Government's decision in this matter as an expression of a genuine and sincere desire to address the long-standing concerns about the conviction and that the presidential pardon will be seen as the best way to clear his name and provide a suitable tribute to his memory.

As I said, further information has been received, which the Minister and her officials are examining and will refer to the Attorney General's office. I am not appraised of this specific information. However, I take the Deputy's point about the need for an explanation in regard to the specific point she raised and will ask the Department to provide one in whatever form possible.