Caoimhghín Ó Caoláin (Cavan-Monaghan, Sinn Fein)

This Bill, as I have said today and previously, should not be necessary, but some have argued and we must now accept it is necessary in law for the reasons stated. The Bill arises from the immediate need for the Health Service Executive to provide information to the investigation into the deaths of children in the care of the State established by Minister of State with responsibility for children, Deputy Barry Andrews. For that reason the Bill is welcome, because it facilitates an investigation that is necessary and urgent.

The figures released by the HSE on 4 June brought to 188 the number of children who died in the past decade either in State care or who were known to the social services. This is a shocking figure, which makes it all the more urgent that the HSE files are released to the special investigation team established by the Minister of State, Deputy Barry Andrews. I wish Norah Gibbons and Jeffrey Shannon well in their important work. As I said when the figures were released, if legal obstacles to the release of the files really do exist, they should be removed as a matter of urgency. To that extent, I welcome this Bill.

Before going into the details of the Bill, I must point out that we are having this debate at a time when the Government is cutting back on social welfare, education, health and on social care services in a way that hits marginalised families and vulnerable children worst. These are the essential supports which help address child poverty and neglect. Undermining these services through cuts will condemn more children to the margins and to the risk of neglect and abuse. I urge the Minister of State to use his voice at the Cabinet table at every opportunity to make these important and salient points to his colleagues in their respective ministries.

This Bill should not be necessary. Why should we have to legislate to compel the HSE to "ensure that the Minister is appropriately briefed by the HSE on all matters that he or she needs to be aware of in a timely and appropriate manner"? Surely that should happen as a matter of course. However, it clearly does not. I believe that is a consequence of the role of the HSE as envisaged by the Government when it was established. It was set up to insulate the Minister and to act as a buffer between the Government and its responsibility to be accountable to elected representatives and the public.

There is clearly a bunker mentality in the HSE. In an article in The Irish Times on 1 June, the Ombudsman and Information Commissioner, Emily O'Reilly, highlighted a case where the HSE spuriously used the in camera rule as the basis of its claim that an investigation by the Ombudsman, which had nothing to do with any particular child, was illegal. The HSE dragged the issue to the courts, incurring substantial costs to itself and, after the court struck out the action, paying the costs of the Ombudsman and the other party as well. As it turned out, the HSE implemented the Ombudsman's recommendations anyway. The Ombudsman described this as "a bizarre experience" in which the HSE "displayed a capacity for ill-founded legalism matched only by a lack of common sense". In response, in a letter to the editor, the HSE national director of integrated services, Laverne McGuinness, strongly refuted the Ombudsman's arguments. However, they are compelling arguments for anyone who wants to take note.

Seeing two such important public bodies, charged with the protection of the lives and the rights of citizens, arguing in this way does little for public confidence. Who is the arbiter here? It must be the Minister, the Government and the elected representatives of the people in the Oireachtas. It is elected representatives here who have brought the deaths of children in care to the fore, who have pressed the Government on it and who have caused the investigation to be initiated by the Minister of State. That is the reason accountability is so important.

We owe a debt of gratitude to the Ombudsman for Children, Emily Logan, for her timely and clear-sighted advice on the Bill. I urge the Minister of State to take on board the three principal concerns raised by her. Her first concern is that the independent group carrying out the investigation cannot directly source information and documents from the HSE, because it is the Minister alone who, under this Bill, determines what is relevant. This may weaken public confidence in the investigation. I have no doubt but that it probably will. The Ombudsman for Children calls for a properly constituted statutory inquiry, with its own means of compelling documents and information rather than relying on the Minister's power to do so. There is also a serious concern that the Bill will not permit the investigation team to publish any report it may issue. This is because, under the Bill, the information goes to the Minister and only he may use it, including for publication. The third point of concern raised by the Ombudsman for Children is the fact that the Bill does not allow the Minister or the investigation team to publish any information or documentation derived from in camera proceedings, even if it is considered to be in the public interest to do so.

I urge the Minister of State to take these important reservations on board and to accept the relevant amendments, as tabled by my colleagues, on Committee Stage. While accepting the urgency of the issues at stake, I regret the decision of the House earlier to force this legislation through by guillotine. The legislation is rushed and like all rushed legislation, it has its share of flaws. We must always guard against the danger of rushed and ill-considered legislation. In light of the difficulties and information provided, including the legitimately held concerns and fears of many now known to the Minister of State, will he now accept the key amendments that seek to address the identified fault lines in the proposed Bill? The Ombudsman for Children has considered the legislation very carefully. The Minister of State has a responsibility to take these concerns on board and to reflect them in the course of the passage of the Bill. It should be duly amended so that it has not only the support in terms of its intent of all parties in the House but the confidence of all voices who speak here in the interest of children across the board.

I conclude by urging the Minister of State to take on board the important concerns that have been expressed not only by the Ombudsman for Children, but by all voices here across all Opposition parties.

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