David Stanton (Cork East, Fine Gael)

I am pleased to speak about the Commission to Inquire into Child Abuse (Amendment) Bill 2005, which relates to residential institutions. I agree with Deputies who have said we need to examine what happened in day schools too. Regardless of where it happened, the abuse that took place was wrong and has had a huge impact on those who were abused. I understand why we are focussing on residential institutions, but we also need to investigate the occurrence of abuse in day schools.

Abuse can take many forms. We have all heard horrific accounts of awful physical and sexual abuse and bullying. We recognise that bullying can have a terrible effect on young children. If bullying by adults and peers is allowed to continue, terrible damage will be caused. I ask the Minister of State to consider the possibility of allowing people who suffered such abuse to tell their stories, at least. It is worth considering the option of allowing people who had terrible experiences in day schools to recount their memories.

I wish to discuss the substance of the Bill, the purpose of which is to give effect to the recommendations contained in the report of the review group on the Commission to Inquire into Child Abuse, the report and subsequent recommendations of Mr. Justice Ryan and the workings of the commission. It is hoped that the changes proposed will better enable the commission to complete a full inquiry into child abuse within a reasonable timeframe and at a reduced cost. The Bill establishes a statutory framework for the operation of an education fund for former residents of the institutions and their families. It makes a number of technical amendments to the Residential Institutions Redress Act 2002.

The Bill changes the definition of abuse to allow the commission to find that abuse occurred where it "could reasonably be" assumed that acts or omissions caused serious harm to a person. This is not the first time the Commission to Inquire into Child Abuse Act 2000 has been amended in this way. An attempt was made to amend the Act by means of the Commission to Inquire into Child Abuse Act, 2000 (Additional Functions) Order 2001. That statutory instrument, No. 280 of 2001, was introduced by the then Minister for Health and Children to allow for investigations into vaccine trials which occurred in 1960-61, 1970 and 1973.

The statutory instrument was presented on foot of a report compiled by the chief medical officer of the Department of Health and Children, entitled Report on Three Clinical Trials Involving Babies and Children in Institutional Settings. The Minister for Health and Children referred the report to the Commission to Inquire into Child Abuse on 13 November 2000. The commission was asked by the Minister to inquire into the clinical trials referred to in the report. This is such a serious issue, as we know, that the Government attempted to amend the legislation on a previous occasion. I am concerned that the previous attempt to throw some light on the vaccine trials seems to have been swept under the carpet by the Government. It was challenged in the courts and the Minister was deemed to have exceeded his powers in bringing forward this order.

I have asked many questions about this and I am concerned about the responses I have received. I asked the first question on 29 June 2004 and was told that the recent judgment handed down by the courts was being examined and a decision would be made on the matter when the examination was complete. I brought it up again on 15 December 2004 and the Minister for Health and Children told me that the order was ultra vires and the issue of vaccine trials would be considered in detail. He said that a number of complex issues had been considered, further consideration had to be given to some of them and that it was likely that discussion would also have to take place with the Commission to Inquire in Child Abuse before any final decision. I am now concerned that there is comprehensive amending legislation before us that does not refer to vaccine trials. I am alarmed that the vaccine trials are being swept under the carpet and forgotten.

I raised the issue on 12 April 2005 and was told again that a number of complex issues had to be considered, they were approaching finalisation, discussions had taken place with a number of parties involved and it was hoped to conclude all considerations in the short term. I was told that it was not envisaged the child abuse amendment Bill would address the issue of the trials. That was the first indication that this Bill would not deal with vaccine trials. I had raised the issue with the Taoiseach and the Tánaiste on the Order of Business on a number of occasions and was given to understand that this amending legislation would deal with the trials but it does not.

I was told on 19 April that the statutory instrument must be revoked by a draft resolution to be brought before both Houses of the Oireachtas. Once a statutory instrument is struck down in the courts, I understood that was the end of it. If the Minister did not have the power to bring it forward in the first place, and the court struck it down, it is null and void. Why must it be revoked in the Houses? Is there a need to do this? On 19 April I got the standard answer I have received for the past year, that complex issues had to be considered and the Minister was not in a position to outline the course of action the Government would take on this matter until all discussions had been completed, even though I had earlier been told they were complete.

Will the Minister look at this again? The then Minister for Health and Children in November 2000 identified a number of questions that the report of the CMO could not answer — why children in care received the experimental vaccine, why some of the recipients were outside the normal age for the administration of the vaccines, was the end result for commercial gain or public good and why were the records of the trials so inadequate. Real people need answers to these questions but they are not getting them. This Bill is a missed opportunity and I ask the Minister on Committee Stage to include a power whereby the commission can investigate the vaccine trials.

Looking at the High Court decision, this was struck down because a link could not be made between what happened at the vaccine trials and abuse so the vaccine trials could not be termed abuse. This Bill changes the definition of abuse to include where it is reasonable to assume abuse occurred. Does that mean this SI No. 280 of 2001 will be reintroduced to cover acts or omissions that caused serious harm to the person?

The definition in the 2000 Act includes the willful, reckless or negligent infliction of physical harm and also failure to care for the child which results, or might be reasonably expected to result, in serious impairment. Will that allow us to include or introduce another instrument or to amend the Bill further to allow the vaccine trials to be investigated? If this was introduced in primary legislation, there would not be any need for a statutory instrument so this is an opportunity to do that and clear this matter up.

There is another problem where the Supreme Court said that some of the primary witnesses could not be forced to give evidence. I understand they were prepared to give written evidence. The people involved in these tests are in limbo as a result. The Minister at the time agreed that consent is the most important issue so if babies in cots in the 1960s had vaccines tested on them and the parents did not give consent, there are questions to be answered. People are now demanding those answers.

Chapter 14 of the third interim report of the Commission to Inquire into Child Abuse is devoted to the vaccine trials and a great deal of work went into it. The CMO recorded that there were no statutory controls in force in this jurisdiction regarding the conduct of clinical trials at the time and that the ethical standards applicable were the General Medical Council guidelines, the Nuremburg Code 1947, the Declaration of Helsinki 1964 and the statement of the Medical Research Council printed in the report of the Medical Research Council 1962-63. This issue must be resolved. Some people's lives are on hold as a result of it and an opportunity now exists to do something about it.

Section 7 allows for survivors to recount abuse. What if they cannot remember it, although they were abused? What help will be given to those who do not remember the detail of the abuse? The vaccine trial is a typical example of this. Six month old babies were injected, although the motives of those carrying out the trials were exemplary. If people cannot recall the details, how can they recount them?

I welcome the Bill, it goes in the right direction. Terrible things happened in the past in these institutions. Such things also happened in day schools and we may need to allow those people to tell their stories. I would like to see the Government use this Bill to deal finally with the vaccine trials or at least to give some response as to what it intends to do. It is not fair to those whose lives are on hold not to give some response.

The former Minister for Health and Children, Deputy Martin, stated that the key issue of consent could not be fudged because it is fundamental. Children in care have the same rights as other children. He pointed to a number of issues related to the ethical basis for the trials and emphasised that he found the lack of documentation both puzzling and unsatisfactory. When he introduced legislation to direct a commission to investigate the issue, he described it as the ultimate guarantee against a cover up or whitewash. At this stage, however, it looks as if something is going on that should not be going on. I want a response from the Government on it and, if possible, an amendment to clear up this matter and give the commission power to carry on the work it started.

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