Micheál Martin (Cork South Central, Fianna Fail) | Oireachtas source

There have been a whole range of drafts and they have been amended and amended. Anyone in the Gallery who was listening to Deputy Wynne's contribution would imagine I had produced the terms of reference last night on a take-it-or-leave-it basis, but that is not how it happened. In fact, we were of a view we had achieved a very substantial agreement. There was an issue around the random selection, the idea for which originally came in a helpful, constructive way from the legal representatives of the Women for Honour. As has been discussed during this debate, it was about how we could ensure a comprehensive, thorough and reasonably timely public inquiry. People wanted to broaden various aspects, such as workplaces and so on, and in that context the idea was that if thousands of cases were coming in, the judge would have an entitlement at some stage to say they could make conclusions. The judge has made very clear to me that the tribunal is going to hear all cases, and that if it ever gets to a stage when that could have to be invoked, it will be.

On most of the other substantive issues, we had agreed on the legitimate issues the Women of Honour had raised with us. Other groups also raised issues but I am referring to specific issues the Women of Honour raised. I outlined in my opening remarks the kinds of issues that were raised. In the case of people who did not make a complaint, for example, the Women of Honour made a very valid point that many people would not have made a complaint because they would have felt the complaints system would not have facilitated them, or they would have been afraid of intimidation or reprisal, or they might have felt it was pointless to make a complaint because it would not have been effective. Under (d) in the terms of reference, therefore, it is stated, "In the context of its investigation into Terms of Reference (i) to (v), the Tribunal may permit evidence of Abuse and the consequences of Abuse to be led, but the Tribunal is precluded from investigating into, or making findings of fact upon any matters that would, if established in a court of law, be criminal in nature". That is understood; tribunals cannot inquire into every individual case or each individual crime. It can make findings of fact as to what happened. We are including anybody who wants to come forward who was abused or who has suffered any abuse.

We then define "abuse". Deputy Collins stated we were not including physical torture but, as I said in my opening remarks, following engagement with the Women of Honour and others we have included physical torture. Abuse is defined as "discrimination, bullying, harassment, physical torture, physical assault, psychological harm, sexual harassment and any form of sexual misconduct (including sexual assault, aggravated sexual assault and rape)." We have included additional requests in that regard.

Turning to other amendments, in my opening remarks I paid tribute to the Women of Honour, the Women and Men of Honour and various other groups we have met. I have never come across a tribunal where the terms of reference include names of groups and so on who subsequently may be part of the tribunal or who may bring evidence to the tribunal, which others may contest. I was surprised to see that amendment because such a provision has never featured in any tribunal, nor do I think it would be appropriate. I mean this in the best of faith, having great respect for what the Women of Honour have done, but I do not believe that is the correct approach for a terms of reference. Terms of reference are, in essence, about what is to be investigated in order that the judge will be very clear. Doing otherwise could, potentially, be seen by somebody to be prejudicial.

The difference between the independent review group and this tribunal is that the latter will be statutory and will be able to make findings of fact. The independent review group drew observations and conclusions but they were not findings of fact, and it was that group that said we should establish a statutory inquiry. We have gone for a public inquiry, because the Women for Honour made a very compelling case that there had been too much behind closed doors in the past and that, therefore, there had to be a public inquiry. We examined the pros and cons of that. Some people, as I said, might have preferred a commission, while others who would like to come forward may not want to come forward in the full glare of publicity. There is no perfect answer but, in the context of so much being behind closed doors and the complaints processes in the past, we went for the public inquiry model. Moreover, we were influenced by the experience of the Charleton inquiry, which, as was said earlier, was quite an effective and efficient tribunal. We did listen and engage, and any assertions that we did not do so are not fair or correct.

On the PPE amendment, complaints would not be deterred by the absence of PPE. I think it is a kind of superfluous amendment because the judge will have absolute discretion on these issues. We defined "complaints of hazardous chemicals" and, in particular, the use of hazardous chemicals within Air Corps headquarters at Casement Aerodrome, Baldonnel. That is now included but was not in the original draft because there were High Court proceedings and parallel processes. Nonetheless, in my view, it is necessary, again to make sure there is full transparency, and I believe the tribunal can ensure transparency around what happened in respect of the treatment of that issue within the Air Corps and the Defence Forces. I am now satisfied to include that area because I want absolute transparency around that entire issue and the tribunal of inquiry is a statutory office.

There were a range of other amendments. On the costs, I think the precedent is well set that the chair of the tribunal awards costs and then grants representations to bodies, groups and various individuals. There is no issue in that regard and it is not necessary to make an amendment to the terms of the reference. It is the norm. Obviously, there will be discussions with the chair, but we anticipate that is what will transpire. Every tribunal has followed a particular course of action.

There was also an amendment, which again was hardly necessary, in respect of the circulation of the proceedings. In the case of all tribunals, if people come before them and give evidence or are cross-examined, they are entitled to access that evidence before it is published and circulated to ensure they are satisfied with how their presentation was treated.

That is normal procedure. These are issues that are worked through by procedure with the judge. That happens in all places where people give evidence. You are entitled to have a copy in advance of its publication to make sure you are satisfied and there are no issues that undermine your character or reputation, etc.

I think I have dealt with most of the amendments. Regarding the lack of equipment or PPE, I do not think it would deter people from making complaints. There is the issue of investigating health, mortality and disability consequences. Let us bear in mind that the timespan to be covered by this tribunal is 40 years. People have said today that the timespan is tight, but it is not. It is anything but tight. Let us be honest; it is 40 years. We have said that people who made complaints can come forward and people who did not make complaints can come forward. The definition of "abuse” is very wide and includes discrimination and physical torture. When you read the terms of reference, I do not think there is any way you could describe them as tight.

I will explain what we mean by "timely". If this proposal is passed this evening and the tribunal is established, the judge will be in charge. We know that. People are saying that the Taoiseach should be involved. No one in the House should have any role in it once the judge has it. It is the judge who is to decide the circulation on all those issues. That deals with the suggestion made by Members that because this is from the Department of Defence, the Department might be trying to influence it, etc. The Department of Health has published many inquiries, the most recent being the cervical inquiry, which was established by the Department. No one questioned the outcome of that.

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