Brian Cowen (Laois-Offaly, Fianna Fail)

I was simply pointing out that the indemnity agreement placed legal responsibility on the religious orders to come up with a contribution. The agreement has the impact of making that a legal obligation. The alternative, in the context of apportioning liability, would have been to fight each case separately with the religious institutions concerned.

The question arose as to the best way of dealing with this issue. The number of cases was indeterminate because, while 2,500 claims of action had been undertaken, the total number before the redress scheme was in the region of 14,000. In the context of what was being done at the time, one option was to come to an arrangement with religious institutions, through an indemnity agreement, regarding the contribution they would make. If such a contribution were not made we would have to pursue each individual case thereafter. The question arises in all such cases of the best way, taking a schematic approach, to ensure that victims get redress. We are not dealing with a confrontational court case in each instance. The liability of the State arose because of acts and omissions of the State, regardless of whether there is an indemnity agreement. The question arose of how we could obtain a contribution from those who acted on behalf of the State, and those decisions were made at that time.

To be helpful, I will elaborate on the question of criminal records. Given that the committal process to industrial schools had the trappings of a criminal process, it has given rise to certain perceptions. However, children committed to industrial schools do not have a criminal record associated with that committal. Section 35 of the Residential Institutions Redress Act 2002 puts beyond doubt that a person who was detained in an industrial school as a child in circumstances in which no criminal offence was committed by him or her is not to be regarded as having a criminal record. A much smaller number of children were committed to reformatory schools - effectively, that at Daingean - to serve sentences for specific criminal offences. However, the Children Act 2001 provides that any person convicted of an offence while a child shall be treated for all purposes in law as a person who has not been charged or found guilty of the offence provided he or she has not re-offended within a three-year period after conviction. The legislation has already gone further than a pardon in that respect. The question of a pardon can only apply to those children convicted of a criminal offence. The vast majority of people concerned were not convicted of any crime, and such a provision would not bestow any further benefit than that already provided for by the Children Act.

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