Michael McDowell (Independent) | Oireachtas source

If one goes back to 2004 and looks at the situation that the then Government found itself in, it wanted to do justice to the victims of clerical sexual abuse. It wanted to establish an inquiry into the Dublin archdiocese, which was conducted by Judge Murphy as well. She has been a huge pillar of the State in these matters. The only tools available to us at the time were the tribunal of inquiry legislation going back to 1919, and that had been interpreted by the Supreme Court as saying that anybody who came on the wrong end of evidence in a tribunal had a constitutional right - this goes back to the Committee of Public Accounts and the arms crisis in the 1970s - in reHaughey - to be represented, to challenge the evidence and to vindicate his or her name publicly by testing or disproving the evidence if he or she could do so.

We must remember that the 2004 legislation was to address a situation where there had to be an inquiry into the sexual abuse of children by clergy. It could not be a general tribunal of inquiry because it would have been absolutely awful to put people who testified through the business of having ranks of lawyers accusing them of perjury and all the rest of it, so there had to be a different kind of mechanism whereby that whole issue could be dealt with. Without getting overly historical about it, what was done then – there are similarities to the 2015 terms of reference – was to ask Judge Murphy at that time to look at a sample of the complaints because, horribly, there were so many that if she tried to investigate them all she would have been there for 20 years. She took samples, she anonymised, she cross-examined people and she subpoenaed people. She looked for records from the Dublin Archdiocese relating to particular sample cases. She anonymised in her report. Some of us may recall that she gave code names to the perpetrators, the victims and the places where things happened to stay on the right side of the reHaughey decision so that people could not complain that they had not had an adequate opportunity to rebut, challenge and test the credibility of all the victims, which would happen if there was a tribunal of inquiry.

I was not here in 2015, and like most of us here I was not party to consideration of the terms of reference, although Senator Mullen was, but I doubt he foresaw this particular difficulty arising now. As I see it, the situation we face now is that the terms of reference were designed to take a small number of the institutions, but not all of them, and not to have a tribunal with an adversarial approach involving "He did this to me" and "She did that to me", but to establish an overall picture of what happened. If one looks at the terms of reference, it is general. It was not the case of considering whether Michael McDowell was sexually abused while he was in Letterfrack. That kind of issue cannot be determined by this process.

Going back to Senator Ruane's point, if people did want to testify in public, the corollary of the re Haughey decision and all of the jurisprudence from the Supreme Court was that one had to have, effectively, a tribunal of inquiry with adversarial legal challenging and testing of evidence. The price that was paid for avoiding that was to set up a confidential process.

Senator Seery Kearney makes the point that these accounts given are untested and unchallenged. It is interesting that the leaflet that the commission issued states on the bottom of page 1, "The evidence you will give will not be open to challenge." One could ask if that is evidence. Senator Seery Kearney is a barrister. Would a lawyer consider it evidence if one person throws out something and it is there and nobody can say that it is untrue and "I never did that" or whatever else? I take her point, but I do not think the Minister is going to take the view that it is not evidence. It is kind of her to throw up that ball for him to hit with his racket, but I do not think he is going to take that view. I think he is going to take the view that what happened before the committee is evidence for the purposes of the Act.

If that were the case, is there an obligation so to deposit such evidence and documents without redaction? If the Minister were to stand up and say he does not think anything that happened before the confidential commission is evidence and therefore it does not apply, that is fine. I would love to hear that, but I do not think he is going to give that assurance to Senator Seery Kearney or any other Member of the House. The reference is to "documents and records" created by or for the commission, other than the "database and related records" which are going to go to Tusla. I do not think the Minister is going to grasp the lifebelt Senator Seery Kearney has thrown so generously in his direction and say that there is no issue here. I think, helpful and constructive as she is trying to be, he is not going to take that. He is talking about something else.

As our amendment to section 2 shows, Senator Boyhan and I have from the very beginning thought that the principle that applies here is the wish of the person who testified to the commission. That is the crucial issue. If the people Senators Ruane and Higgins refer to wanted public hearings, there would have had to have been a mini tribunal of inquiry. One could not simply say Brother so-and-so or Mother so-and-so did X, Y and Z to me in public without giving them the opportunity to say that is wholly untrue and suggest that the evidence is false. One just could not do that in public. One cannot establish a one-way street for victims, even if one tends to believe that the victim is much more likely to be right than the person accused, which is dubious in some circumstances. Even if one slanted it towards the victim, one must give protections to people who are on the receiving end of such public utterances. One cannot establish a forum where people can make accusations against other people immune from consequence.The Supreme Court would slap that down immediately, if it was attempted. We have absolute privilege in this House, but we are subject to our own constraints. We cannot just make wild accusations against people and if do, we are subject to sanctions imposed by the House. We could not possibly have a situation where people could just testify in public without being challenged.

I come now to a point which the Minister might be getting tired of hearing. I put this question to the Minister, and the answer he gave, which came as a surprise to me and, I am sure, many other Members, was that Tusla would not get anything to do with the confidential committee. That is the kind of question which should be asked on Committee Stage and the answer should be given then. On Report Stage, it would then be possible to tweak an amendment to state that if we are not referring to that, we are referring to another category of material and Report Stage would then reflect what happens on Committee Stage.

Likewise, to take account of what Senators Ruane and Higgins said, if the amendments Senator Boyhan and I tabled are unduly concerned with the confidentiality of the people who want confidentiality to surround them and insufficiently addressed to the people who would like their record to be in whatever ministerial or State archive, or available for whatever process at whatever particular time, and if I fail to consider sufficiently those points by making it very clear in an amendment that I tender that it is subject to the wishes of the people involved and that those wishes should be ascertained, one way or the other, that also shows why Committee and Report Stages should not be on the same day. Rather than a division, I see a significant consensus emerging that if people doe not want their record mutilated, it should not be mutilated and if people want their name kept secret, the commission should have the right to do that.

Returning to amendment No. 21, our proposed section 5(2) states:

Where a document has been created solely for the purposes mentioned in subsection (1)[the confidential committee] which in the opinion of the Commission was created on the express representation to any individual as set out in subparagraph (b) of paragraph 4 [of the order of 2015], the obligation under subsection (2), section 43 of the Act of 2004 shall be subject to any direction made by the Commission to redact the document so as to give full effect to the said representation.

What we were trying to do with the amendment was to say that the commission should have a discretion to make a redaction if it believed that it was necessary to give full effect to the guarantee of full anonymity given to the person whose record it is. I suppose it could have been made clearer by mentioning the consent of the person involved and the power of the commission, before doing any redaction, to inquire of the individual if he or she wanted to exercise that right.

However, that brings us back to the point that the Minister is ramming this Bill through the Houses without giving fair consideration to those points. The Members of this House were given very valuable information by the Minister at the beginning of this debate on these amendments, namely, that none of the confidential committee material will be going to Tusla. That was not clear, however, and was never made clear to any of us until now. The whole purpose of a legislative process with different Stages is that information comes out, such as that which the Minister has just furnished, arguments such as those put forward by Senators Ruane and Higgins are made which cast a different light on some of the people affected by this legislation, or the amendment, one way or the other. When that happens, there should be a pause, where Senators can agree with a point, such as that made by Senators Ruane and Higgins, and that should be allowed for. Instead, however, the Minister has set in train a process that completely prevents this House from really arriving at a consensus on this issue. The process that has been set out is automatic, like an ATM machine, where something is typed in and then something comes out, and we are supposed to produce the result the Minister wishes, without amendment, because he has considered everything. There is the infallibility of the moving Minister. I was a Minister and I suffered from that disease, of that we can be absolutely sure. It has always been wrong for a Minister to come into a House and will not listen to the amendments, will not budge on any of them and will say that each and every one of them is unnecessary or whatever.

My other point is that Senator Mullen has asked the Minister a straight question and we are entitled to an answer. If there is urgency here, it is that on 30 October 2020, this commission of investigation will wind up unless its terms of reference are tweaked to give another three or four weeks to enable this House d Dáil Éireann to do a proper job on this legislation, and also to give the commission a timeframe in which to seek out the views of the witnesses who went to the confidential committee as to whether they want a redaction. Much of the injustice implicit in this legislation could be avoided if that were done and the legislation could reflect a fair balance if that were done.

As Senator Higgins said, it is outrageous that Members of Dáil Éireann are being asked to furnish amendments to this legislation before the Seanad has even finished with it. The only presumption must be that no amendment is intended to the Bill in this House. Deputies will be asked to put in amendments to what the Seanad will rubber-stamp on Friday because there will be no amendment in the Seanad. We can safely table amendments to the text the Minister is bringing in because no matter what is said in this House, it will this Bill or no Bill that will come before the Dáil next week. That is wholly wrong. It flies in the face of the clear commitment given to this House by the Leader in September, on the date we considered the Forestry (Miscellaneous Provisions) Bill 2020, that this would not happen and that we would not be in a position where we could not operate the various Stages of legislation in a sensible way, one which enables us to take account of the information we are receiving and the arguments we hear from our colleagues.

Some people wanted to abolish this House. I will not point any fingers but some people wanted to do that. If we say to Deputies they should prepare their amendments because nothing that crowd in the Seanad says, does or votes on will change our minds and they should do so on the assumption that the legislation that comes out of Seanad Éireann will be that which went into the Seanad, that anything said in the Seanad will be ignored and that Senators will agree to telescope all Stages because the Government's majority will be used to bring that about, it will make this debate almost meaningless in some respects.I ask the Minister to tell the House upfront what is to stop him extending. Presumably, the commission would agree to it and request it. What is to stop him extending the commission's life by 21 or 28 days so it can finish all its administrative tasks, as I believe it is under huge pressure to do so because its staff have been affected by the coronavirus clampdown? What is to stop him from doing this? Does he think Judge Murphy would object to having extra time? My understanding is the final report is ready and it could do a confidential commission sub-report almost at will. There is not an urgency here. We deserve an answer rather than just being fobbed off with a statement that 30 October is written in stone; it is not. The commission's life has been extended on a number of occasions. There is nothing special about 30 October.

The only thing I can see that is of urgency on this matter is the ridiculous judicial council issue that was thrown in to the rear boot of the legislation for safe passage through the rubber-stamp Seanad. I come here to make serious points. I come here to listen to serious points. Serious points have been made. Serious amendments could be tabled but the Minister has, by insisting there be no Report Stage in effect, seriously damaged the capacity of the House to listen to its own Members and attempt to achieve justice for everybody in this matter, with the State honourably abiding by the solemn undertakings it gave to people whom it invited to participate in good faith in the commission's process.