Thomas Byrne (Meath East, Fianna Fail) | Oireachtas source

I wish to share time with Deputy Fiona O'Loughlin.

I thank my colleague, Deputy Willie O'Dea, for bringing forward the motion. On behalf of the victims of sexual abuse who have been excluded on an unfair basis from the fruits of the Louise O'Keeffe decision, I thank the Deputy and my party leader for their commitment. I pay tribute to the victims, many of whom are in the Visitors Gallery and many of whom have told me their stories of abuse and neglect by the State which are dreadful and appalling.

The Minister has tried to deal with our motion in a way that misinterprets it entirely, possibly deliberately so. We are not trying to create a category or a special category for certain victims of abuse. What we are trying to do is facilitate those victims of abuse whose cases essentially have been proved by way of a conviction by allowing them to qualify for redress. There would be no exclusion of anybody else. The courts are always open for any other victims of abuse who do not fall within the terms of our motion to take cases, but this is for persons for whom prior complaint has been an insurmountable and I suggest illegal hurdle put before them. The most ludicrous exemplar includes the first victims where there could not possibly have been a prior complaint. It makes a mockery of the Louise O'Keeffe decision and the law set down by the European Court of Human Rights to exclude these individuals and the others affected by it.

I note that Deputy Catherine Connolly set out a summary of the law. Having read the Louise O'Keeffe decision, there is no harm in outlining it. It states:

In sum, having regard to the fundamental nature of the rights guaranteed by Article 3 [the prohibition of torture] and the particularly vulnerable nature of children, it is an inherent obligation of government to ensure their protection from ill-treatment, especially in a primary education context, through the adoption, as necessary, of special measures and safeguards.

Furthermore, this is an obligation which applied at the time of the events relevant to this case, namely in 1973.

Nowhere in the statement of law by the European Court of Human Rights which we adopted as part of our membership of the European Community and under the Constitution is it stated there must be a prior complaint. Where prior complaint comes in is in the application of that general legal principle to the particular case of Louise O'Keeffe. It is deeply wrong, immoral and unjust to use the application of a general legal principal to exclude the people concerned who are nearly all men from benefiting from the redress scheme. We do not know what benefit it would provide, but all the law can give to the victims of a wrong is money. It cannot undo what has been done. It can certainly punish offenders, but it cannot do anything else. However, this is not about money; rather, it is about what the liable person - in this case, the State - can do.

I refer to a decision made in the High Court by Mr. Justice Max Barrett - it is an awful decision to read - in the case of one of the victims who is described in the judgment as Mr. A. I will not give his name, but it may well be known. There were other plaintiffs also. The judgment of Mr. Justice Barrett given on 26 May 2016 was incredible in the sense that issues of contract law were brought in to prevent the gentlemen from taking their case against the State because they had been served with a discontinuance notice a number of years previously when the State had a couple of victories in court cases related to this issue. In the judgment the word "victories" is in inverted commas because they were not really victories because the Louise O'Keeffe decision subsequently overturned the decision in her particular case and the plaintiffs had withdrawn their cases. Mr. Justice Barrett, in stating they could not come back, felt he was obliged by law to do so. Whether that is right or wrong is a matter for him. However, his comments were absolutely searing in terms of the way the people concerned have been treated. The judge stated he felt he was making the correct decision as a matter of law, but he freely admitted that he wished that matters were not so. Some of the facts claimed that underline the plaintiffs' claims and which were placed before the court make for deeply unpleasant reading. The judge stated his was a court of law and that he could not change the decision. What he said was, "But the Irish people, with their great and proper sense of justice, may well conclude that the path of rightness in this matter should lead ultimately to a different end [effectively our motion], regardless of the end reached here today" in court. He went on to state, "This Court, as an Irishman, would respectfully agree were they so to conclude." The people, as Mr. Justice Barrett stated, "with their great and proper sense of justice," might well conclude that the path of rightness leads to a better position, but they can only act through the authority of the Government of the day. Deputy Richard Bruton is the Minister for Education and Skills. He is the authority who could act in accordance with what Mr. Justice Barrett said. He felt he could do no different in a court of law but that the people could take "the path of rightness." I urge the Minister to take the path of rightness, as urged by the judge as the moral and right thing to do, and accept our motion, not to use the floodgates argument, as this involves a limited category of persons.

We have heard so much about Mr. Justice Iarfhlaith O'Neill. As I understand it from reading the terms of reference he has been given, he is not there to overturn or interpret the particular advice the Government has received. He is there simply to apply it. That is in fundamental disagreement with what the victims are here about today. I do not want the Minister, Deputy Richard Bruton, to take personally the assertion that he is not his usual effervescent bubbly self today. He is in different form and I do not blame him because this is a difficult position for him to adopt. It seems clear from his body language and tone of voice that he is extremely uncomfortable. A plain reading of the decision of the European Court of Human Rghts and Mr. Justice Barrett's judgment and his exhortation of the people suggests the Minister is right to be uncomfortable, right to be queasy and right not to be in his usual best of form when delivering the Government's position.

I will leave it at that, but I urge the Government to withdraw its amendment.

See this speech in context